mr. president. you are being butchered by the media. everybody knows that. but keep in mind that america is full of lois keans, and they love you. okay. with that i will yield the floor. the presiding officer: the senate stands adjourned until

agroprocesser's case was ntil following supreme court precedent. in the shirtan case, the supreme court, a 7-2 decision, said the that undocumented immigrants are employees under the national labor relations act. i quote, since undocumented aliens are not among the few groups of workers express lly exempted by congress, they plainly come within the broad statutory definition of employee. that's a quote from the case. >> that's part 2a. you have to go to part 2b. >> let me talk about a few people who couldn't agree with you more. everyone else who looked at this question, the national labor board, two appeals court judges, including one republican appointee followed the supreme court persistent and came to the opposite conclusion that you did. i understand you may have preferred the shirtan dissent, but you failed to follow supreme

court precedent. this was a case where the national labor relations act included those who are undocumented, who could unionize to protect themselves in the workplace. you went out of your way to dissent all the way along and make sure they didn't -- or in your view, that they did not have that right to unionize. >> i very respectfully disagree, senator. sfourt did s the supreme court did say it was covered. then the supreme court goes on to say, and we consider also in resolving this question, the conflict between the national labor relations act and the immigration laws and makes clear, as i read it, if the immigration laws had made employment of someone here in the country unlawfully illegal, that would be prohibited in the case. if you go back, i quote the oral actor transcript from shirtan in my dissenting opinion.

and look, i had no agenda in any direction on the -- i'm a judge. i'm just trying to resolve the precedent -- >> let me close by saying this. i'm just a judge, i just follow precedent. gosh, we've heard that so often. and we hope it's the case, but we know there's much more to your job than that. >> i agree. >> the fact that you were a dissenter and everyone else saw this the other way should give us pause when you say, i'm just following precedent. >> well, i, respectfully, senator, that opinion -- i'm proud of that opinion, because i think it carefully details the law in that case. of following the supreme court pregnant. and to your point that other judges disagree, there was a case i had about ten years ago, it was a case where i ruled in favor of a criminal defendant on a restitution matter. every court beforehand

disagreed. i wrote the majority opinion. every court after us disagreed. finally got to the supreme court this year and they agreed with our one opinion. the papano opinion. just to point out that just because other court of appeals might have disagreed does not necessarily mean that we were necessarily wrong, because the supreme court ultimately decides that. i understand your question and i appreciate them. senator. >> senator cornyn and senator lee is going to chair while i have another appointment. >> thank you, mr. chairman. mr. chairman, i was grateful that today's hearing, at least as far as the committee is concerned, is a lot more dignified and civil. but unfortunately, some of the high jinx continue even on the senate floor. i know senator mcconnell has consent for the judiciary committee to continue meeting during today's session of the senate. senator schumer objected, to senator mcconnell was left with

no option but to adjourn the senate and allow the committee to continue to meet. that's unfortunate. so judge, i believe we met in the year 2000. >> yes. >> just to take a little walk down memory lane here, when i was attorney general of texas and had a chance to argue a case in front of the supreme court of the united states, you, ted olsen, and paul clement, i believe. >> -- >> y yes. >> -- helped me get ready. i regret you didn't have better material to work with. >> it was an honor, senator. >> it was a great experience and an educational experience, but i got to experience your skills as a lawyer and followed your career closely since and proud to support your nomination based on my personal knowledge of your skills, your temperament, and your character and your fidelity to the rule of law.

but i do want to pick one bone with you. i did -- this isn't unique to you. based on that experience, that case, as you may recall, involved a tradition in the santa fe independent school district, unfortunately, which was the site of a shooting in more recent days. but back then, the practice before football games is that the students would be able to volunteer to offer a prayer before the football game. they weren't required to do so, the school didn't pick them, they could offer an inspirational saying or read a poem or anything else, but that was the practice. well, until the aclu filed suit and unfortunately it was held to be unconstitutional in violation of the establishment clause. i'm not going to ask for your opinions, because this issue will likely come back before the t court. but since i mentioned it to justice gorsuch, i'll mention to it to you. the thing that has stuck in my

craw for the last 18 years is the dissent written by chief justice rehnquist. which takes exception to the majority's decision, saying they distorted existing precedent, but he goes on to say, even more disturbing than its holding is the tone of the court's opinion. it bristles with hostility towards all things religious in public life. neither the holding nor the tone or the opinion is faithful to the meaning at the request of the congress which passed the bill of rights proclaimed a day in prayer to be observed andacknowledged with grateful hearts the many and signal favors of the almighty god .

as i have you here, i thought i'd mention that. i'm not asking for your opinion as it's likely you will be called upon to decide on cases involving the establishment clause and since we have that history together, i would tell you that still sticks in my crawl >> i understand. i remember cases i lost, i remember and it still sticks in my craw two, senator. >> i marvel that under the first amendment we can, have a variety of voices speaking that's generally a good thing but it can be of violence, sexism, it could be almost anything but you can't speak about religion in a public forum. >> there have been cases from the supreme court's in more recent years, cases like the good news club the case, cases like the trinity lutheran case, cases like the town of greece case where the supreme court has recognized

the importance of course of religious liberty in the united states and has also recognized i think that religious speakers, religious people, religious speech is entitled to its space in the public square. and not discriminated against. i think the trinity lutheran case is a good one on that. the good news club case is one where there was an actor school program in a school gym i think or auditorium and a religious group was excluded and the supreme court made clear you can't exclude religious groups so o there have been developments since then in terms of religious equality and religious liberty that are important . in most cases, they are difficult actually but the principal you're espousing has been reflected in recent supreme court exits. >> i'll conclude with this, as i understand the

constitution requires the government to be neutral and asked chief justice rehnquist in his cases, the government evidenced hostility to religious speech in the public square. one person's opinion and i'm not asking you for any opinion with regard to the case that may come before the court. [inaudible] [shouting] mister chairman, i hope that time won't be subtracted frommy 30 minutes . >> it will not be. >> thank you. judge kavanaugh, i am intrigued by a comment you made earlier about the role of precedent you alluded to this book that you and others , other judges wrote that i garner from the

law of judicial precedent. i checked it out, it's 900 pages long and i haven't read every page of it either it's not meant to be read word for you word. it's a treatise where you go to a section that might be a - pointer. >> let me ask a basic question and we can work our way into that. when people go to court, should they expect a different outcome if the judge was nominated by a republican , from a court where a republican judge was nominated by a democrat? >> that's an important principle of judicial independence and the judicial role. the judge is an umpire as chief justice roberts articulated and i've taught many times, it's critical when you go to abaseball game, the umpire is not wearing the uniform of one team or another and that's a critical principle .>> it

strikes me as an important point, given the suggestion that one of the reasons people have objected to your nomination is you have republican blood flowing in your veins. it strikes me as a strange and bizarre statement. >>i've been a judge for 12 years and on 307 opinions, i'm proud of that record and i've been an independent judge for 12 years. your judge, you're not a republican or a democrat as a federal judge . >> you talked about the constitutional basis for a judges obligation to apply existing precedent . could you expand on that little bit more because most people are under the impression this is sort of a discretionary matter and you can carry between what precedents you decide to follow and which ones you don't follow . >> there's been a debate sometimes about what are the

origins of precedent, why do you follow precedent? and as i see it, there are a number of reasons you would site sustainability, predictability, impartiality, reliance on interest but all of those are not policies in my view. as i see it, the system of precedent comes from article 3 itself. when article 3 verse to the judicial power now be vested in one supreme court as congress shall from time to time establish. to my mind, the phrase judicial power, you think about what does that entail ? you look at the meaning of the time of judicial power and you look, one source of that is federalist 78 and in federalist 78, it's well explained that if judges make decisions based on precedent and precedent therefore as i read judicial power have constitutional origins and a constitutional basis in the text of the constitution.

>> i think you touched on this as well. judges unlike legislators don't run for election. you don't have a platform. vote for me, this is what i'll do if i'm elected into office. one of the most important elements of limiting the important role of judges i think under the constitution is your required to decide a case on a case-by-case basis, oracle saying henceforth, the law will be boss, assuming you could get oeight other judges on the team of nine you talked about to agree with you. could you talk about the importance of deciding cases on a case-by-case basis? >> we will add another 20 seconds. >> absolutely, senator. it's important to understand and i think senator graham alluded to this as well, as i judges, you don't issue policies or opinions out of the blue . you decide that article 3

says cases and controversies and that means there's a process of litigants come into the federal trial court and for example, and litigate against one another and there's a process there, a trial or prejudgment motion that a district judge renders an opinion and that comes up to the court of appeals in my case and there's a briefing and oral argument, i like to say there's a process, the process protects you and it's one of the things i like to keep in mind. you go through a process to make good decisions, deliberative process and judges are focused on process and having that oral argument, having the briefing and then talking to your colleagues, i can change your mind, you're a judge of course. you change your mind sometimes based on the comments of colleagues so

that process is important and to your point about the siding that case, you write an opinion. you're not trying to resolve every issue imaginable, you're trying to resolve this case under the principles and precedents,the text of the law , the text of the statute and decide that case or controversy and that's how judges build up a system of precedent over time by deciding one case at a time and not trying to do more than they can or more than they should. [shouting] >> judge, don't you think that what you described for us in deciding cases on a case-by-case basis as an important foundation in fairness to the litigants of the parties that come to your court? how would somebody feel if they know you already announced in all cases that have to do with subject ask, i've made up my mind. i don't care what the facts are. isn't that unfair to the

litigants?>> it can be senator, at least where an overbroad ruling may result in things that people who are affected by it have fought well, i wasn't part of that case, why am i not affected in a particular way? one of the things i can say about how i've tried to write my opinions, over 300 opinions as i'm always concerned about -- [shouting] i'm always concerned about lwunintended consequences. this is one of the reasons i go through so many drafts of my opinions and work through them is even a sloppy footnote or an ambiguous word or opinion when you're drafting laws here, that's true to but. >> you're concerned about unintended consequences which is why it's so important to clear the opinions and the precise and not decide too much . [shouting]

>> judge, let me ask you to tell us a little bit about september 11, 2001 . where were you when you heard that the planes hit the world 20trade center in washington dc and another plane the pentagon in washington? >> i remember i was in the west wing when the second tower, i remember that in the upstairs counsel's office, with a couple of other people in the counsel's office and then we were ushered down tears and then told to get out, run out because there was fear as we later learned about flight 93. i think i don't know whether it was headed to the capital or the white house or some other target, of course and the heroes of flight 93 save so many americans.

at sacrifice and of course we all still celebrate in the sense of celebrating their lives and their heroism m urfor saving all of us in washington and ended up out in lafayette park with the rest of staff and changed america, it changed the world. it changed the presidency. it changed congress. it changed the course of all the issues that came before us, it was a new kindof war , as president bush described, an enemy that didn't wear uniforms and that would attack millions so new kinds of laws to be considered and congress had to work through that and president bush had to focus so intensely and as i've said before, my ntremembrance of september 12 is basic mentality was this will not happen again. and having traveled with him

from 2003 to 2006 everywhere ask staff secretary and to seeing him up close, i still thinkevery day . i was with himduring those years every morning when he got up , it was till december 12, 2001, this will not happen again and he had to do ,all the other things of the presidency and all the other legislative and regulatory ceremonial aspects, but he was so focused on that and i'm sure that's been true of the succeeding presidents as well because the threat still exists, of course. >> as we came to learn, osama bin laden of al qaeda was responsible for that attack and has now morphed into other organizations like isis and the like. but i want to ask you, you

had to then sit in judgment later on in a case, the harm done case whichyou alluded to earlier where the defendant was osama bin laden's personal bodyguard and driver . he was captured by us forces in afghanistan after 9/11 and that detained in guantc he was captured by u.s. forces in afghanistan after 9/11 and he subsequently went through a military tribunal and then that case wasappealed to your court . and just correct me if i'm wrong, but notwithstanding the experience that you and everybody you cared about having been through this terrible travesty of 9/11, you ruled in favor of osama bin laden's bodyguard and driver, correct?

>> that is correct, i wrote the majority opinion.>> how did you do that? how could you possibly do that? >> the rule of law applies to all who come before the court in the united states. >> even an enemy combatant? >> equal justice under law. >> even a noncitizen? >> yes. noncitizens who are tried in us courts have constitutional rights. and really my model on that, judicial model for thinking about something like that, i thought about what you are asking about. justice robert jackson had been franklin roosevelt attorney general and he submitted in the korematsu case, even though that was one of president roosevelt policies, the majority opinion overruled but justice jackson dissented and ruled against the roosevelt policy justices clark and burton , two appointees of president truman are the two deciding votes and youngstown steel, that's a 62 decision, they both were appointees of

president truman. they get to, and its wartime against correia, they got to the supreme court and the youngstown steel case which was an extraordinary national moment, one of the great moments so your conception of the role of the judge is, it's about the law and that's distinct from policy and our judiciary depends on having people in it and we are fortunate to have a wonderful federal judiciary, people in it to understand the difference between law and policy and are willing to apply principles of equal justice under law to anyone who comes before the court, even the most unpopular possible defendant who is still entitled to due process and the rule of law and i've tried to ensure that as a judge. >> it's hard for me to imagine a more unpopular defendant than osama bin laden's driver. and my personal bodyguard.

so i find the suggestion that somehow you are prejudiced against the small guy in favor of the big guy or that you were picking and choosing who you're going to render judgment in favor of based on something other than the rule of law, i think this answers that question conclusively for me.the fact that you could separate yourself from the emotional involvement you had along with so many people you worked closely within the white house on september 11 and you could then as a judge put on the black robe and take the oath of office. you could then render a judgment in favor of osama bin laden's bodyguard and driver, because you applied the law equally to everybody that comes to your court. >> sometimes, let me allude

to something senator sasse was speaking about yesterday in terms to the separation of powers, an important aspect to our constitutional system and one i know you don't with often on the dc circuit court of appeals . and that has to do with what i've read some judges talk about, some constitutional scholars talk about a conversation betweenthe branches . in other words, when the dc circuit court or the supreme court decides a case, they finally decide that case, but they don't finally decide what the policy is for the united states or american people, correct? >> that's correct senator and one of the important things judges can do is adhere of course to the laws by

congress but then in writing the opinion, make clear, and i've done this before and a lot of my colleagues do this, is that perhaps the statute needs updating but if it does, that is the role of congress to update the statute or if there's sometimes a hole in a statute or something that seems unintended in a statute, and you alert congress to that. i served with him on the judicial branch committee appointed by the chief justice and he has written a book about that interpretation but he's also been a leader of the project to make sure that congress is alerted of potential statutory issues that look like they might have been things that perhaps congress would not have intended or at least congress would walk what brought to its attention so it could fix . >> that project has been successful. i think judge catherine's projects, is one even without

that project, how you write your opinion is important. we don't update the statutes, you update the statutes but it's good for us to write our opinions in a way that points out potential issues that congress might want to be aware of's that part of the conversation between the two branches ofgovernment. >> absolutely.. and that's an important dialogue to have . between congress and the hearing in the back-and-forth that'simportant on that front we. and i think that's one thing i'm always thinking about in my opinions. you write the laws but if the law looks like there's some issue with it, some law or something that might be an unintended consequence, in the opinion you can identify it and that could be something that congress can turn its attention to. i'm well aware that statutory drafting is a very difficult process, it's something that judges need to be more aware of and how difficult the process is.

even if you are doing it as one person, it would be difficult but then doing it as a collective body and doing it with the house and the president involved, there are a lot of people in it and it's hard to have with all the compromises, hard to have crystal clarity on every possible topic so as judges, number one we have to recognize the process you go through as legislators. that means adhere to the compromises made and the text is written but also when we write our opinions if there's something that's not working out, it's appropriate i think forjudges to point that out in their opinion . >> and of course even if it's a constitutional basis for your decision, that could be changed by constitutional amendment, correct? >> that's correct as well. the framers did not think the constitution was perfect by

any stretch . they knew it had imperfections. for starters, the original constitution did not have the bill of rights, the first 10 amendments so there was a lot of discussion at the ratifying conventions about having a bill of rights and it was quickly done in the first congress in new york in 1789 of course by james madison, taking the lead on that but so do they did not think it was perfect to have an amendment process as specified in article 5 of the constitution and that amendment process was intended to be used and we've seen it used the correct doctoral issues, the 12th amendment in presidential elections, 17th amendment as you all know well on senate elections, 22nd amendment which limitedpresence to only two terms. the 25th amendment which corrected some issues with respect to vice presidency . and so too of course the 13th, 14th and 15th amendments, most important amendments in the

constitution in many respects because it brought a promise of racial equality that had been denied at the time of the original constitution into the text of the constitution, so the job of the people, which is the congress and the state legislatures is to amend the isconstitution.it's not the job of judges to do that on our own and obviously, that's a basic divide of constitutional responsibility that is set forth right in the text of article 5 of the constitution . >> i can't remember who said it, justice jackson perhaps who said the supreme court is always right, it's not final because it's always right, it's right because it's final or words to that effect but i always thought the more i got into that, the more i disagreed with that, because it is a conversation to the

branches and if the american people believe that there is a constitutional matter, the way the constitution is being interpreted, it's within our power as the american people to change our own constitution by amendment. there's provisions itself to do that. it's hard and it should be hard, but ultimately the authority that we delegate to ndthe government finds its origin in the consent of the governed. it's not something dictated to us from on high from a marble palace or somewhere like that here in washington. it's ultimately our responsibility, our authority that provides legitimacy to government itself, do you agree with that? >> i agree of course with that. we the people form the constitution of the united states and the sovereignty, the people are the ultimate authority and you're right about justice jackson's line.

i think it's a clever line, but ultimately i agree with you. i've always had a little bit of a problem with that line that we are infallible because weare final . both parts of that are wrong in some sense because i never want to think of the court as infallible and i also never want to think of it necessarily in the way you're describing either because there's, people always have an ability to correct through the amendment process. the amendment process is hard and hasn't been used as much in recent decades but at the beginning of the country the amendments were critical and dread scott of course, awful example of just a horrific supreme court decision that is then corrected in part, at least on paper in the 14th amendment, 13th, 14th amendment and that's an important example i think of your, probably the best example frankly of the point you are making about the people being able to respond to horrific decisions of the

supreme court. >> in fairness to justice jackson, maybe he was thinking as i originally thought about the expression as being binding on lower court judges. trial judges, appellate court judges and the supreme court does have the final word in that food chain of the judiciary, but not in terms of the fundamental authority of the american people. >> i think that's probably right, senator. i don't want to treread justice jackson but the question is whether it was korematsu versus the senate or youngstown or justice jackson, he wrote some of the greatest opinions in the example of judicial independence as well but on that one line, i take your point . >> let me ask you one last question, we talked about the role of president and senator feinstein talked about stare

decicis but on occasion, the supreme court has decided that its decisions were just wrong. that goes into overruling those previous decisions. i'm thinking of plessy versus ferguson which was a scar on our body politic that said that separate but equal education facilities that the constitutional requirement of the 14th amendment but can you talk about the extraordinary circumstances during which the supreme court would revisit a precedent? >> brown versus board of education of course overturned plessy v. ferguson and plessy was wrong with a was decided.

it was inconsistent with the 14th amendment which guarantees equal protection and the supreme court in the west virginia case had said, what is this amendment but that the law shall be the same for the black and the white and the supreme court unfortunately backtracked from that clear principle in the plessy decision and a horrific decision which allowed separate but equal and then brown versus board directed that in 1954, of course, corrected it on paper , still decades later and we are seeking to achieve racial equality, the long march for racial equality is not over but brown versus board as i've said publicly many times before, the single ergreatest moment in supreme court history by in so many ways, the unanimity of chief justice warren achieved which is just a great moment, the fact that it lived up to the text of the equal protection

clause, the fact that it understood the real-world consequences of aggregation on the african-american students were segregated into other schools and stand with a badge of inferiority, that moment in brown versus board of education is so critical to remember and the opinion is so inspirational and i encourage everyone, it's a relatively short opinion that it's very powerful, very focused on the text of the equal protection clause and correcting that awful president of plessy v. ferguson, a great example of leadership and the last point i'll mention on process. they knew they were going to face popular backlash. they knew it and they still did it, so that shows independence and fortitude but they also had reargument which, they had arguments

originally and decided there's a lot going on and maybe not everybody is seeing the same way and they had a reargument which i think is a good lesson on process protecting us and keep working at it and see a team of nine that i mentioned yesterday and mentioned today, keep working at it as a team of nine and they came out unanimous. chief justice warren led the court in that decision. that was the greatest moment in marine corps history . >>, judge . >> i awarded two additional moments to senator cornyn, senator whitehouse is next. >> good afternoon judge kavanaugh. are you good for another half hour? >> i'm good. >> in my office, you told me you could provide no assurance can be that you would uphold a statute requiring insurance companies to provide coverage for

pre-existing medical conditions. is that still true here in public? >> i think senator it's important to understand the principle at play here. >> we talked a lot about that . what is the statement you made, have i recited it daccurately, that you can give no assurance that you would uphold -- >> judges like to explain their decisions. >> usually you get asked the questions because you're the appellate judge today for half an hour i get to. so is it still true that you can give no assurance that you would uphold a statute requiring insurance companies to cover pre-existing medical conditions? >> to prepare for this moment, i went back and read -- >> i would like you to be as careful with your time as you can because i have a limited tamount of time with you so the quicker you can get the answer, it could beas simple as yes, sir no . t>> i can enhance your understanding of my answer by explaining it, i think.

>> i really just want your answer on the record, i think i am capable of understanding on my own . >> there's nominee president of how justices and nominees in my position have answered in the past and i'll be succinct if i can. in all eight sitting justices -- >> people have already heard you say but i think it's important. >> i want to underscore, all eight injustices in the supreme court have made clear it would be inconsistent with judicial independence rooted in article 3 to provide answers on cases or issues that could come before us. justice ginsburg, justice kagan talking about president, no thumbs up or down and i went , justice ti marshall was asking his hearing what do you think about miranda?

>> your answer is still no. >> the reason everyone else does this is rooted in judicial independence and my respect for precedent. nominee president and my respect forjudicial independence so i can't give assurances on a specific hypothetical. >> let me go on to another subject inches executive privilege . executive privilege is a principle that is founded and the constitution and the separation of powers, f correct? >> the supreme court ruled in rt the us versus richard nixon case, that was the key issue. >> i needed the answer to the question and you answeredit . >> the source is important. >> the privilege, it needsto be asserted, does it not, that's true of privileges generally .

>> i don't know where this is going. >> it's a pretty le straightforward question, no privileges need to beasserted in order to apply. >> privileges are recognized . >> as a general proposition -- >> yes, attorney-client privilege you would assert the privilege. >> and who asserts executive privilege? >> that is a complicated question, senator . >> ewhat does it come back to? who asserts executive privilege? >> it depends what you're talking about, what executive branch document you are talking about. >> ultimately, it's the president. >> there is not precedent on that, there's some but the supreme court in united states versus richard nixon -- >> is it fair to say executive privilege belongs to the president of the united states, the chief executive. >> it can also belong to the former president.

that's one caveat i want to put on that. >> fair caveat. is the assertion of executive privilege by the president subject to judicial review? >> of course, because under the precedent, us birches richard nixon said 2 things. >> .. itutionally rooted. the special prosecutor in that case argued that actually there was no such thing as executive privilege. and the supreme court rejected that argument and held that the executive privilege is rooted in the separation of powers and in article ii but secondly -- >> the reason i'm asking doesn't have much to do with you. it goes back to >> we have received hundreds of pages of documents of your record that look like this. they both say, confidential across the mountain angle, and then across the front they say,

constitutional privilege. as a member of the senate, this is not a question, i'm speaking to my colleagues. i find myself in a quandary about being denied those documents. i cannot find any assertion of the privilege these documents just suddenly appeared and someone had put constitutional privilege on the page and wiped out all of the text that was on the page. my understanding is there is ordinarily a process for getting to that determination that allows for ultimately judicial review. we have failed to get subpoenas out of a committee so we can't trigger that way. there's no apparent assertion of executive privilege that i can find of how this particular paper got here. so, i just want to's establish

some of the basic ground rules with you. i think we agree on that. i think that is commonly agreed to put that in the context of what we're looking at. particularly with respect to chairman's leahy question, of some of the documents he has been looking for is protected by this non- assertion assertion, we have a problem. it's a continuing problem. we've had other witnesses commenting on assertions of executive privilege. i'm sorry to drag committee business before you but i think it's important we get this right to make my make one addendum to my experience. i don't think formal assertion usually occurs until after there has been a subpoena. >> which is why we can't get a subpoena and that polishes up the process. >> the role of the federalist society and bring a new here today has been of interest to me. as you know, we spoke about it a

lot when we met in my office. mr. magana is sitting patiently behind you, you can see him over your shoulder, here said that the federalist society was in sourced into the white house to make these recommendations, specifically the recommendation that you should be the nominee. you have said this regarding president bush. that he thought and i'm quoting here it was improper to give one group, especially a group with interests in many issues, a preferred or favored position in the nomination process. those were your words speaking to the federalist society at national lawyers convention. on another occasion, you wrote a draft speech for attorney general or the white house

counsel gonzales to deliver to the federalist society. you said in that speech, as a matter of constitutional principle it simply inappropriate, we believe to afford any outside group a quasi- official role in the president's nomination process. how do you square those two comments about the role of the american bar association in the nomination process with the role of the federalist society in your nomination process? assuming he was speaking accurately when he said they were in sourced to the white house? >> i can speak to the aba part of that. president bush come in 2001 had to make a decision on how the ada should play its usual rating roles with respect nominees. the ada takes files, briefs and policy on issues. therefore, after some deliberation it was decided

there was nothing wrong with the ada rating the nominees, but to give an organization that takes policy positions a preferred grow in the constitutional nomination process was unfair in some ways. >> with a fair description of the federalist society's role in your selection is the nominee to say that it was preferred over other groups? >> my experience was when justice kennedy retired on wednesday, mr. mcgann called me later that afternoon and said we need to talk. he came over to my office on friday evening or late afternoon. we talked for three or four hours. interviewed and went through the usual questions you go through when you are embarking on a process like this. then i interviewed with the president on monday morning. >> is it your testimony that you

don't know what the fed role of the federalist society was in the selection? >> my personal experience of what i know is that president trump made the decision for starters. president trump made the nomination. i know as explained yesterday, i know he spent a lot of time in those 12 days on this issue. i was aware of that. i know that mr. mcgann was directly involved with the spent a lot of time on it. i know. >> but you know the you'd have no knowledge of how the federalist society was in sourced into the white house, that's a mystery to you as well as to us? >> i'm not sure what he meant. by that comment. i think federalist society members, the lawyers and the administration are federalist society members.

it should not be a surprise sumac and leonard leo's role specifically? >> i don't know. i don't know the specifics. >> let's go from specifics to generals. let me put up a graphic that shows some of the folks who fund the federalist society. it's a significant group of people who tend to share very conservative and pro- corporate points of view. it reflects at least 14 donors are anonymous which is an unfortunate part of our current political world. probably more than that, donors trust is an organization whose sole purpose is to launder the identity of big donors so that a

recipient of funds can report that they got the money from donors trust rather than the true party in interest. so, we don't know how much anonymous money flowed through them. i would contend this is a strong group of right wing conservative pro- corporate funders. presuming that to be true, should that give you or anyone in this process pause that groups like this may have had such a significant role in selecting you to be in this seat today? >> senator, mr. mcgann was the one who contacted me. i interviewed with the president and another president was directly involved with making that decision. i'm sure he consulted with mr. mcgann and others.

i know he consulted widely to get input on at least the people who are the finalists. that part of it, my 12 day experience with the white house counsel's office the president and vice president. i also am not familiar -- sumac whatever the rule the federal society this was in all this and there was. there is plenty of reporting. you don't know that you have testified and that's fine. >> you are fairly familiar with the process generally because you use to run it in the bush white house or had a significant role in the the process of judicial nominations selection, correct? >> i did not run it, judge gonzales one is in the counsel's office was a counsel.

>> but you have been inside the process. >> i have been inside the process, yes. >> the next thing that happens going forward as we see the judicial crisis network showing up. they spend millions, millions, and millions of dollars to run ads urging senators to support you. i don't know if we can show those were the same funders, because they are engaged in what is called dark money funding. they don't report their donors. but, i would be prepared to make a very substantial beds that there is enormous overlap between the funders of the judicial crisis network campaign for your confirmation and the federalist society donor group, to the extent we are aware of since 70 them are anonymous, hypothetically should the american people have concern

about the role of very big spenders and influencers doing things like been involved in the selection of a supreme court nominee and running dark money campaigns to support the confirmation of a nominee? is there any cause of concern there? >> there are a lot of premises in your question. >> i am not asking you to accept it is true i'm asking it as a hypothetical. if there were very significant big special funding behind the organization that was responsible for selecting you in recommending to the president that he nominee, and again from a similar group in supporting the dark money campaigns running on your behalf, would that be a matter of concern or is that fine and we shouldn't care about getting answers?

>> one as i described the process i went through with the president and vice president. that's what i know about my process. on the ads, there are a lot of ads against me as well. i have seen those. the family has seen those and then there are ads for me and we have seen those two. as chief justice roberts said it's a free country and there are ads for and against. >> do you know who is funding the ads? just as a matter of citizenship? >> i think that's a policy question for the congress to decide on what disclosure requirements it wants to put in. if they were put in her state governments could make disclosure requirements i think some try. there would be challenges to that. was the first amendment complications of the?

i would keep an open mind on that case we would think about it. the policy question is really for congress in the first place to determine and study what kind of disclosure requirements should be put in place. i understand the potential hazard there. the unleashed power of unlimited political dark money then becomes like a ratchet, the obstacle to solving that problem. i hope you can understand that as a matter of political principle. >> i do understand the concerns about money in the political system. in the time it takes all of you and when i worked for president bush in 2003 - 2004 and how many fundraisers he had to do and

going back to the september 11 points the time and burdens on the presidency, he had to do a lot of fundraising, running for president while your president. >> it's easier now that you can set up a 5o1c4 and drop tens of millions of dollars in it and the public doesn't know who's behind it. it's gotten easier since president bush, but not better. >> for some members in the hou house, if you're running for reelection a third-party group comes in against you and you have to go out and spend more time, as i understand that's part of the concern i heard generally as the time each of you have to spend sumac let me continue forward through the problem of funders. on the court, on the d.c. circuit and potentially the supreme court, you will often see cases brought by groups like

the pacific legal foundation, you familiar with that group? >> i have seen briefs. >> to know what they do? >> i will take your description. >> my description is that they get money from right wing conservative and corporate interests and they look for cases around the country they believe they can use to bring arguments before the court. i argued against them in the supreme court at one point they came all the way across country to the shores of rhode island. they wanted to hire a client whose case they could take to the supreme court with a purpose to make a point. they are not alone in doing this. there are a number of similar groups who perform the service.

it causes me to think that sometimes the true party of interest is actually not the named party before the court, rather the legal group that has higher the client and brought them to the court more or less as a prop to make arguments trying to direct the court in a particular direction. is that an unreasonable concern for us to have about the process? >> i think there are public interest groups spanning the spectrum that look for cases to weigh in on. they are also, course have been historically you look for people

trying to identify suitable plaintiffs to challenge. this is across the entire spectrum. >> what are the signals that has gotten out of hand? that there is something rotten in denmark? >> that's an interesting question and important but not one that i have a great answer to. >> let me propose one thought. the supreme court at least should fix its rules on who the -- is and require some disclosure of who's behind them. the only thing the supreme court requires is who pay for the briefs. the brief itself is not a very big expense. very powerful interests can come in behind the group which has a lovely name like citizens for peace and prosperity and puppies, nobody's knows who is of interest. another thing that be a concern i would think would be when you see the special interest groups rushing out trying to lose cases. in order to get before friendly

court. this seems improbable of somebody who has tried cases and has been around courtrooms a lot and have seen a lot of great litigators. i have never seen anybody once tried to lose legitimate case. so, in the wake of justice alito signaling about what became friedrichs and janice, to see these groups rush out and asked the court to rule against the so they can get up to the supreme court where they expect a good outcome, to me there's something that doesn't seem right. it seems like full litigation. there's something else going on other than real parties having real arguments in the supreme court settling properly prepared real disputes. do you have any concern about

the optics of people rushing to lose cases to come before what they think is a friendly supreme court? doesn't that seem odd? [inaudible] [inaudible] >> i would acknowledge senator i am not entirely familiar with that phenomenon. >> i might follow up with you with a question for the record to get your more deliberate thoughts about it. >> on your meekest thought, i'm interested in you the specifics of your proposal and certainly of confirmed. >> here's the concern, you know perfectly well that the court depends on this much is anything on its reputation come you don't have a person you don't have an army, you stand on your reputation in the judiciary. you must not only act justly but

be seen to act justly. what i have laid out this a scenario in which big special interests have a significant role in funding the group that i believe a much reporting says is responsible for getting you to the top of the greasy pole of nominee selection. and that the same funders are behind the judicious crisis network operation that is politically pushing for you. that the -- >> senator white house we will add one minute to your times. [inaudible] >> that some portion of your supreme court docket is made up of strategic cases rather than real litigation in which somebody has gone out to find an

appropriate plaintiff, higher the client, bring them in and when they're done they fire the client unceremoniously in my experience. then, when the proper case comes up you see a flood of special interest and mckee with terrible transparency of who is behind them. we tracked one of the big funding groups behind 11 different briefs in the same supreme court case. so this whole thing begins to have a really rank odor to it. at the end of the day when things really start to go haywire my view is when you go back to the 5 - format decisions. i think it's the most heartbreaking thing i experience like political life. i used to argue front of appellate courts, it's what i did, not at your level but i have been in front of the first circuit a lot and the supreme court once. i kinda thought that i was a

reasonably good appellate lawyer. the idea that our supreme court is deciding as many as 80 cases under justice roberts on appear partisan divide, think it has a real signaling problem. i hope you will consider the that is something the court needs to cure rather than make worse than having its credibility. i think 80 cases in which all the republicans go one way and can't bring a single democrat appointee with them, that's it tough data point. then, when you look at that tough data point nec more than 90% of those cases, if you look behind at the outcome, it had one of the big interest that i mentioned to big special interest that was implicated. when you look at the win loss rate in those cases and it is 100%, 100%. for this crowd a big special

interests, and then here is where you come in at the end. this is the majority in those four cases where the conservative groups have come in to make their pitch. they have 192% of those times in those 5 - format cases. if you're thinking you're throwing long balls like hail marys, maybe that's a person, that's a hell of a record. if you look at your record on the d.c. circuit where the conservative groups come in line right up. 91%, 92%. when you put the saga together from the special-interest listing behind the federal society to the special-interest funding to the big special interest behind the specific law foundation and this array of i

would say strategic litigators were funded by corporate right way interest. and then you see this result, that's the tableau that is alarming one for the court. i would urge you to think hard about whether that is the direction you would want to continue to go as an associate justice of that court. at some point, those numbers catch up with you. at some point pattern is evidence of bias. >> senator, couple thoughts. on the briefs at least in my experience i take a look at the quality but not the identity. i take your point on the

disclosure. i'd be interested in the disclosure requirements for the supreme court. two, i believe deeply in the idea that we are a team of nine and need to be working together. i take the point that it's important that if i am confirmed that i work as best i can, and i will to maintain the confidence of all the american people and the independence and impartiality of the supreme court at all times. i am aware -- [inaudible] [inaudible] >> i am aware of everything i do, if i would be confirmed would help affect that and help decide what i would write and how i treat that against an oral argument where he speak, what i say and everything that goes into how i behave. everything goes into the oppressions of me of one part of

from confirmed and your broader point. >> [audience disruption] [audience disruption] >> my time has expired. >> i'm happy to give you more time. >> i think when you have seen polling that shows 49% of americans think the corporation will get a fair shot than an individual, seven times as money think it's the other way now, you still have a few to work with who are undecided. the fact that about half the american people already believe

that corporations will be treated more fairly and united states supreme court than human beings will, and the alignment of that with the facts i have shown you about the supreme court's record of 80 partisan decisions, many involving -- i think we are at a tough place right now. we need to get back away from that. >> thank you senator white house. >> judge kavanaugh, i want to get back to questions my colleague was asking a minute ago. did anyone from the federal society contact to about the vacancy after justice kennedy made his announcement he would be stepping down from the court? >> no. >> during the campaign of truc

president trump, i recall he came out to different lists, a possible supreme court nominees. the first had 11 nominees on it. the second list had 21 names on it which included the previous 11. there were reports at the time that some outside groups had some involvement in that. were you involved in the first list? >> i was not. >> were you included in the second list? >> i was not. >> so you became under consideration only after president trump took office, correct? >> that's my understanding. >> and after he was staff within the white house. within the supreme court, is that the case there is an audio much as there is in the united states senate or house of representatives?

>> there is no i'll are separate court caucus rooms in the supreme court. either literally or figuratively in my view. >> under most circumstances, most years come in recent the past decade or so, the number of cases decided on love 5 - format margin have been very low, less than 20% as far as i can cap come is that consistent with your understanding? >> that is. >> meaning the configuration of 5 - 4 is much less common than the others. it is worked in comparison to those that are considered 9 - 0 which is the biggest contingent word 8 - 1 or 7 - 2 or 6 - 3. even in the cases still decided 5 - format, does the fact that it was considered 5 - format make it any less of a legitimate

decision? does it make the judgment less binding than the parties of that case? >> no. it is still a decision of the court the matter what the ultimate majority opinion is composed of. >> would it behoove a lawyer, who is an officer of the court to call into question the subjective motivations of a courts, simply because the court decided the case on a 5 - format basis? >> if i were a lawyer arguing for the supreme court, i would probably refrain from questioning the motivation for the justice. i know the justices they are all committed to the constitution of the united states and impartially discharging their duties. they have different perspectives on different issues, butts, we are fortunate to have eight

hard-working justices who have outstanding records and are committed to the constitution and committed to the independence of the judiciary. >> what about in the d.c. circuit where you have served? would it be fair to suggest that the case is somehow less legitimately decided if that case were decided along the lines of which president appointed which member of the d.c. circuit? >> the precedent stands either way. >> thank you. i want to get back to separation of powers point that has come up along various lines of questions asked by my colleagues today. is the constitution relegated to the judicial branch? is it something to be upheld and interpreted only by those who wear black robes?

>> no, senator. let me take it to the process. congress passes laws, and in considering laws, congress will often assess the possible constitutionality of the loss. in the first instance when you are considering the passage of the law, you may assess the first amendment implications, or if it's a national security, fourth amendment implications for the due process fifth amendment implications. >> we have all taken our owners to uphold the constitution. so you do your best and the executive branch as well, whether to sign the bill for the president he has a constitutional concern or policy concern but he could detail the bill for that reason, that has happened historically. when it comes to the court we

assess in cases or controversies the constitutional of a law challenged. president washington, george washington asked the supreme court for an advisory opinion in his first term on the disputed legal issue. may have been a second term. president george washington asked for an opinion in the supreme court respectfully wrote back and said we don't provide advisory opinions, we only decide cases or controversies. thereby underscoring the point you're making which is constitutionality of laws. >> [audience disruption] >> [audience disruption]

>> it would not be inappropriate for us as members of the legislative branch to decide to protect something that is constitutionally protected regardless of where we might place our bets on what the courts might do with it. if we see something that might be jeopardized it would be inappropriate to say, were not sure how far the supreme court might go. out of abundance of respects were going to draw the line more carefully so we make sure were one-step and talk constitutional territory. >> that has happened historically and happens today. it underscores how the constitution tilts toward liberty. it tilts towards liberty because it is hard to pass with both houses in the president. not only might there be policy objections, but members of congress might say, even if the supreme court would uphold this law based on my assessment, i have a first amendment objection, eighth amendment cruel and unusual clause.

based on my view of the constitution i'm going to vote no on the law. another way in which the constitutional structure tilts towards liberty. >> for that very reason it might lead to bad results appear to not do that. we are always inquired to say let's just pass this the court would do something about it the need for see instances where that might create problems. >> i think justice kennedy has written eloquently about this. each officer and member of congress, the president takes an oath to abide by the constitution. that is important for each member to understand it -underscore. it is an important part of the separation of powers process.

i don't think the framers thought, let's pass something even though we, ourselves, meaning the members of congress think there's a constitutional problem here. that's not how it has worked historically. >> there are instances in which we may not something which may not be challenge for long time. might be difficult to challenge due to somebody lacking standing or the right controversies. >> that happens in the national security context. there is often not someone especially if it's the been done in a foreign country against foreign citizens, it might be difficult to get into court. >> one reason i focus on this is there was an exchange with one of my colleagues about the indefinite detention of american citizens apprehended on u.s.

soil. there is discussions suggesting of how they would justify. you don't need to respond, but it is a point that needs to be mentioned, justice scalia mentioned in his dissent that it was not this court's finest hour. in fact what happened was the case was argued, it was decided the next day. the saboteurs were taken out and it was issued many months later. notwithstanding the possibility of the supreme court might not step in.

>> justice scalia dissented in that case, one of his. >> it was impermissible to hold the american citizen and long-term military detention and that was an important opinion of his as we give a talk justice scalia identified that. a very powerful opinion it also dealt with many who are not american citizens. you're right, there is an american citizen involved.

the court studied this as much as anyone in the court resolve the case quickly and we spent many an hour trying to decipher certain paragraphs for that opinion for cases that i have had. it is not easy. i'll see the court to its credit did have an eight hour oral arguments and the attorney general argued here personally. we tried to figure that out and it cannot unlock the box before me. your point to say it was not the court's finest hour, it was a rush. sometimes the court has to rush, but rush decisions judicial context are not always the best. >> would you be open to bringing back the eight hour oral

argument? >> the eight hour oral argument, we did have one in the case maybe two years ago that went all afternoon. after we got back to the conference room i don't think anybody was saying we should do that in every case. >> let's talk about judicial philosophy. i would like to discuss federalist 78. hamilton discusses the dichotomy between will and judgment on the other. will being something that is exercised by the political branches, by the congress and judgment being something exercise -- was the difference between those two? >> the judicial branch just deciding cases or controversies according to law. the legislative branches making a policy exercising the will.

the judicial branch can never exercise the policymaking role that is reserved for congress. that speaking at a level of generality. were trying to figure out what the line is. it's important for every judge to go in with the mindset of i am not the policymaker. i am the law interpreter in the law and flyer. i think that's an important part of federalist papers woven into the constitutional structure. judges come i've certainly tried for 12 years to incorporate that basic foundational principle and how i approach each case. it is a very critical bedrock principle of what judges do in our constitutional system. >> when we enact along, what

determines what it is you have to interpret? is it what we say or what we subjectively intended? >> it is what is written in the text of the statute. justice kagan set it while, at harvard law school she said we are all textual us now. she's talking about justice scalia who brought about significant change in the focus of all federal judges. i have seen it across the spectrum. they are place close attention to the text of the statute. that's why justice kagan said we're all textual snow. she explained that every judge cares about the words passed by congress. why is that? i think about it through formal matter the law passed by congress is the binding law, it

is what is signed by the president to what has gone to the senate and house. that is the law. also as a practical and functional matter, having seen the legislative process i know how compromise comes together, there's negotiations late at night for precise words and compromises. legislation is a compromise. when we depart from the words specified in the text, we are potentially upsetting the compromise that you carefully negotiated the legislated negotiations you may have had with each other. that is a danger i point out. when we deviate with what congress wrote, we are upset in this careful compromise even if we think we would've struck that

compromise and different places. both as a formal functional matter's important to stick to the text. there are some interpretations that may cause you presumption and cause you to superimpose a presumption on the text but sticking 20 past is important. >> you consider yourself a textual us. that's what judging this. >> judging is paying attention to the text,. >> it's also been informed by those cannons of destruction such as presumption of mens rea implied repeals and things like that. until some of the cannons are not-so-subtle. >> how does textualism relate or differ from original is in?

original is an associate to my mind means constitutional textualism. meaning public meaning of the constitutional text. sperry careful when you talk about a ritualism to understand people are hearing different things. so justice kagan at her confirmation hearing said we are all originalist. by that, she met the precise text of the constitution matters. of course informed by history and precedent this matter as well. there's a different perception people have which is original intent, what did the people subjectively and send the text to me. that has fallen out of the analysis.

for example let's take the 14th amendment equal protection clause. it says equal protection, equal mean sequel. the law shall be the same for the black and the white, brown versus board focuses on the text. but, there were some races members of congress who did not think it should apply in that way to certain aspects of public life. but if you're paying attention to the text you do not take account of those subjective intentions. nor is it proper to take into account. they can be evidence in certain cases of the original public meeting. but you don't follow the subjective intention. original public meaning, ritualism what i prefer tours constitutional conceptualism,

think those are referring to the same thing which is the words that the constitution matter. as i said repeatedly you look at historical history in the tradition they tell us to look at the liquidation of the meeting by historical practice over time. look at precedent which is woven into article 43. start with the words we are all originalist now in that respect to paid some attention paid attention to the words of the constitution. >> so if we stipulate for these purposes that original is some refers to textualism applied in the constitutional sphere with an eye towards identifying the public meaning, you are an originalist. >> that's correct.

i think that's what they meant that we are all originalist now. i think she said what she meant. >> what would be the arguments against that? that sounds like judging. what would one argue against being that textual us or originalist? >> there are different philosophies of what a judge does. i think article six of the constitution says this constitution shall be the supreme law of the land. the word law is important. it's not a set of aspirational principles. it is law that can be applied in court and what is the law? there are ratified by the people and therefore can be applied in the courts of the united states. says the supreme law means when you pass a statute that is

inconsistent with the constitution the supreme law controls over a contrary statute. that is also discussed in federalist 78 as well of what is the supreme law of the land. the constitution is the supreme law. historical practice subsequent to the passing of the text. the court will often look at what is the historical practice and president. those things are going to it, but the words and the original public meaning arm an important part of constitutional interpretation and has been throughout. >> let's suppose congress with its approval rating between 911% making us slightly less proper

-- what if we decided that we are all busy, prints to attend, political rallies to rally and we get tired of the busy work of actually making loss until want to make ourselves accountable. it's much easier to pass a broader statement so we hereby pass a law that says we united states should have good law we delegate to the united states commission a good law the power to promulgate and interpret and enforce the laws in the united states. what constitutional issues d.c. there? >> senator, congress is assigned the legislative power in article one of the constitution. if it delegates host sales or constitutional power to another

body, that poses a question of whether that body exercising that power ultimately has improperly exercise the legislative power and if that rule and acted by that body was lawful because it was not enacted by congress. the framers intended that congress wouldn't act the laws in the executive would enforce the law and the judiciary would resolve cases controversy. >> yet, in some respects it's not that far removed from what we do today. we may not pass something that extreme but in some cases we will say we should have good law area x and give commission one the power to make and enforce good laws in that area. was there some point in which we cross a threshold?

>> the supreme court has nine delegation principle. at least under current precedented has allowed the delegation, and i don't want to get too specific, it has allowed some delegation and some justices would say when the executive and ask rule pursuant to the delegation's exercise of executive power. there has been pushback. the supreme court has a doctrine on the nine delegation principle. the line is debated on where that should be drawn. there is precedent that suggested some point congress can go too far and how much power it delegates to an executive or independent agency. >> and when we do that at some point where shirking our own responsibility and we are

consolidating it's one body the power to make and enforce laws which is not something that can lead to tyranny is the definition of tierney itself. i want to get to the campaign finance discussion. with regard to citizens united, didn't the supreme court uphold the disclosure requirements citizens united? they did, it was an 8 - 1 martian. you have written there was a distinction for first amendment purposes. between laws mandating disclosures is that right? >> that is what the supreme court has said in certain contexts. that is the law as set forth by the supreme court. citizens united is a good example of that. >> in a case called emily's list

you wrote the disclosure requirements trigger rights that receive quotes, less first amendment protection. then other types. >> i think that follow from supreme court law and is consistent with subsequent supreme court law. >> do you have a favorite among the federalist papers? >> i'm not asking you to choose between -- >> i like a lot of federalist papers. federalist 78 the independent judiciary, the role of the judiciary, federalist 69 which

says the presidency is not a monarchy is very important one hamilton describes the ways the way it is not a monarchy in our system. that's very important. federalist ten which talks about factions of america and explains that having the separations of powers in the federalist system divine powers would help prevent affection from gaining control of the power for the people of the united states. that makes it frustrating because it's hard to pass new legislation. that division of power helps protect individual liberty. that comes from federalist ten. federalist 37 and 39 talk about how we are just talking laws that are the constitution over time could be liquidated by historical practice. that means that as the branches

fill out the meaning of the constitution over time they can be relevant and how the court interprets provisions. we talk about the national federal government, the combination that we have that's this genius rights of having a national government and state government that there is proportional representation. that interesting compromise which madison was supposed to, federalist 47 which senator club which are mentioned the accumulation of all power in one body is the very definition of tierney. i start my separation of powers class every year with that quote that you read because that is important.

fifty-one, men were angels we would not need government. i'm sorry have like eight kids. >> it's brilliant the greatest hits list that's close than the men and half i have left. i gave myself an additional 30 seconds because of the two interruptions. tell me how you were informed by federalist 51 and how that relates to your role as a jurist now and in the d.c. circuit. the role you play if you are confirmed to the d.c. circuit. if we are angels we would not need government. if we had actually access to angels we would not need these cumbersome rules let me government so inefficient and frustrating. why is that important and how does that affect you as a judge

when trying to interpret the law. >> that's interesting. we look realize that we are all imperfect. all of us as humans are imperfect. that includes judges, legislators and all of us that are imperfect. we recognize that and how we go about setting up our government. if there is a perfect group of people we will put our power and one body. because we are imperfect, putting power and that one body to be the definition of tierney. the way we deal with that imperfection and having a government because we are imperfect is separate in the power. that reinforces why the framers, the genius despite the false the genius of separating the

executive tilting toward liberty and all those respects and having a federal system story of state governments. i think all that is because we are imperfect and because we recognize the imperfections. it's why we have things like the jury system. even within sheet the judiciary we did not trust a judge to do trials on his or her own criminal child's, we have a jury system to recognize only have usually 12 knots to recognize that we are imperfect. that's why we have 535 legislators the nine justices. we don't usually have one. i think that stems from the same philosophical understanding that we are imperfect beings we

divide power and make sure that no one person in the jury situation or other situation where liberty can be effective is exercising total control. >> thank you very much. my time has expired. . . expired. i'm not the chairman of this committee even though i'm playing him on tv. i understand we're supposed to take a ten-minute break. ten minutes.

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>> the senate judiciary committee taking a short break. this is the second day of brett kavanaugh's confirmation hearing. questioning of the nominee is expected for the rest of today and tomorrow. outside legal experts are planned for friday, including testimony from john dean. there were some questions as to the length of today's hearing. here's what happened at the start of today's floor action, leader mcconnell asked for unanimous consent to waive the to hour rule that would prevent committees from conducting business for more than two hours. after the senate convenes. something that's requested on daily basis when the senate is in session. senator schumer objected to the leader's request saying the senators needed more documents to make a vote.

since the senate convened at noon today, the judiciary committee would have had to have ended by 2:00 p.m. eastern. in order to allow the hearing to proceed, senator mcconnell adjourned the senate for the day until noon tomorrow.

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>> welcome back, judge kavanaugh. senator klobuchar. >> thank you very much, mr. chairman. i was just visited by your wife who is here, and she just told me you celebrated your 64th wedding anniversary. is that correct? that's what she told me. i thought this is very romantic that you are gathered here. [laughter] >> i want to start, judge kavanaugh, going back to where we started yesterday, and that

is about the documents. and the production of documents from the time that you worked in the white house. do you personally have any objections to the release of the documents from your time as staff secretary? >> senator, i'm not going to take a position. that's in my view a decision for the committee in consultation or discussion with the executive branch and the -- >> so you are not going to say whether or not you have a problem with it? >> i'm not. i don't think it's my role to say one way or another at least as i analyze the current situation, that's a decision for the committee and the executive branch and the presidential library, president bush's documents ultimately. >> since right now we're not able to review those documents in addition to the 102,000 that the white house has deemed theirs, that we're not able to

see and asserted a privilege that's never happened before in a supreme court nomination hearing, is there anything in those documents or the staff secretary documents that you think we would like to know that's relevant to some of the topics we have discussed today? i mean, you must know what's in them. >> before you answer, without taking time off of her time, it's incorrect that committee confidential -- those senators can see those records, all 100 senators can see those records. in fact, we set up separate terminals so people can go there. we haven't had very many people take us up on the offer. >> but, mr. chairman, not go into my time, either, to respond to you, i wasn't talking about those 189,000 documents. i was talking about the ones that we're not allowed to see at all, from the staff secretary time, as well as 102,000 that the white house has asserted privilege on that we are not able to see. i'm not even talking about the

189,000. okay. thank you. >> i stand corrected. >> all right. so again, i asked if there's anything in those documents you think would be relevant to our discussion here. >> senator, those documents are president bush's documents and for the committee and the bush library and the executive branch to negotiate about, and i have 12 years of judicial record, and this is not a new issue. this is an issue that came up with justice scalia's hearing and chief justice roberts experience with the documents with justice -- >> those are solicitor general for the viewers out there. i'm talking about the ones in the white house time. >> i guess i'm not seeing a distinction. they are both executive branch documents, so there's one executive branch. >> i think one is involving the ongoing solicitor general. one more question on this line, you just said that rush decisions aren't always the best in answer to the discussion with senator lee.

and you think a good judge would grant a continuance to someone who just received 42,000 documents on the day before a start of a trial? >> senator, that's a decision for the committee, and i'm not familiar with the circumstances of the document. on the solicitor general documents, i just want to say one thing, with chief justice roberts, it was not active cases. that was four years of his documents from the time he was solicitor general, that's from 1989 to 1993. he's nominated in 2005. it's my understanding that those documents -- so my only point is it's not a new issue, but it is also not for the nominee to decide, because they are the president and former president's documents. >> why don't we move on to the executive power issues. yesterday i mentioned your submission to the university of minnesota law review. we thank you for making our law review so famous over the last month or so. in that article you said that a president should not be subject to investigation while in

office. you said in our meeting that congress would likely act quickly if the president did something in your words dastardly, a word you also used in the article. i'm struggling with the practical implications with that. what about a president who commits murder or if jeopardizes national security or obstructs investigation or a white-collar crime, how do you differentiate between these crimes when you characterize them as dastardly? >> i think there are several issues going on with that question, senator. the first thing i want to underscore is that what i wrote in the minnesota law review was in 2009 when president obama was president or becoming president, was thoughts on a variety of topics, reflecting on my experience -- >> i just want to pick up the tempo a little with my questions because i have so many of them. could we get to that point about the dastardly, if there's a way to differentiate? >> yes, but just to underscore,

it is real important that was a proposal to be considered. it was not a constitutional position. i did not take any constitutional position on the issues you're raising. i want to underscore that. if a constitutional question came to me, i would have an open mind and decide that. on your point -- >> there isn't any clear text in the constitution that speaks to the question. instead these are your own recommendations based on your own views and experience? >> there are two different things going on. the one is about special counsel investigations, for example, or criminal investigations. and -- or civil lawsuits and that's a question for congress to consider, whether they want to supplement the protection provided by clinton versus jones, because there's a lot of criticism of clinton versus jones. the second question getting right to your point is what is an impeachable offense, that's actually a decision for you, not for me. because the house and the senate -- >> i'm figuring how whether we

know something is dastardly or not if we can't even investigate it. >> i think i'm going to repeat that's a question for -- you're asking for -- high crime or misdemeanor? >> i'm asking about your position that you stated in the article that a president should not be subject to investigations while in office. >> the dastardly comment -- >> you're only saying that they should be subject to investigation as part of an impeachment and there's no other investigation that could occur, is that correct? >> no, first of all, constitutional position on criminal investigation and prosecution. i did not take a position on the constitutionality, period. on the idea that i talked about was something for congress to look at, if it wanted. that's point one. point two is the idea what is an impeachable offense and that really is a question for the

house and the senate. >> let me move on. this is about actual opinions and really along the same lines that i know the senator is going to talk about the special counsel statute. we're very concerned about that. but in the holder case, i quote, this is you, under the constitution the president may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional, even if a court has held or would hold the statute constitutional. and so then you told me when we had the talk in my office that you attempted to clarify your views two years later in the county case. it seems inconsistent to me. is it the case, your views, as expressed in actual opinions not law review articles that a president can just ignore a law and until a court upholds like you said in the county? or that a president can continue to ignore a law even after a

court upholds it, like you said in seven sky? >> ignore is not the concept there i think we discussed when we met. we had a good back and forth on that, was the concept's proscuterial dispresentation. that discretion is of course firmly rooted -- united states versus richard nixon case says the executive branch has the absolute exclusive authority and absolute discretion whether to prosecute a case, that's an exact quote from the united states versus richard nixon and then heckler versus cheney says that applies also in a civil context. and the limits so that discretion is well recognized. in other words the u.s. attorney's office might prosecute gang violence, but let low level marijuana offenses go, in terms of an exercise of that

discretion. >> if a court has held a statute constitutional, do you believe that a president should have to enforce it? >> so for example, let's talk about for example the marijuana laws, those are constitutional, but a u.s. attorney or the attorney general could say we're not going to devote our resources to low level marijuana offenses, perfectly constitutional -- >> let me try one other example with you. the texas case on preexisting conditions. the administration has taken the position that is unconstitutional, that part of the affordable care act in the texas case, taking the position that you could actually throw people off of their insurance if they have a preexisting condition. so let's say that that law is found to be constitutional, could the president choose not to implement the part of the law providing protections for preexisting conditions? >> senator, that's a pending

case, so i cannot talk about it. >> okay. this is just my concern because of this expansive view of executive power where it brings us and where we end up. i want to move on to some consumer issues. in 2016, you wrote an opinion, which was later overturned by the full d.c. circuit in which you found the consumer financial protection bureau unconstitutional. the majority recognized that millions of people were devastated by the financial crisis and they upheld this bureau, and we know now in real-time the bureau has helped about 30 million consumers obtain more than 12 billion dollars in relief. but you dissented in the case. and i want to talk about the consequences of this legally. i know you focused on the bureau's structure. we talked about that. you looked at the relevant history and you said that agencies like the cfpb, the consumer financial protection bureau, amount to a headless fourth branch of our government

and they quote pose a significant threat to individual leb -- individual liberty end quote. does it follow that you think other independent agencies are also constitutionally suspect? >> the supreme court of course has upheld since 1935 the humphreys executor decision that the concept of practice of independent agencies, on the cfpb decision, the structure of that agency deviated from the traditional historical practice of independent agencies. >> you think the humphreys case was that 80 years ago was correctly decided? >> it's a precedent of the supreme court, and it's been reaffirmed many times. but on that cfpb case, i need to get this out, which is i did not say that the agency had to stop operating. it could continue operating and it still operates. what my constitutional concern was was the structure with the single member head, which had never been done before for an

independent agency of that kind, and my remedy would not have been to invalidate the agency at all, but would have been to make that person removable at will and then you could have if you wanted amended the statute to a multimember agency. >> it also concerns me because other agencies like say the social security administration which you note in the dissent -- in the opinion, they are also just headed up by one person; right? so then does it follow that that agency as well would be unconstitutional? >> again, senator, my -- do from the back door -- the remedy is that the person, the single person would be removable at will instead of for cause, but the agency would continue to operate -- >> but wouldn't have anyone heading it up? >> no, it would have a single person heading it up, but removable at will in the case of the cfpb, so the agency -- i

want to turn what the majority felt about your dissent, and i think they recognized that the dissent would threaten many, if not all independent agencies, i think they specifically mentioned the ftc, and i would add other ones like the fr, securities and exchange commission -- like the federal reserve, securities and exchange commission, does it follow that you think these agencies are unconstitutional? >> i didn't say anything remotely like that, respectfully, senator, in the case, all i was talking about was a single headed independent agency. >> but that's like social security. >> the ftc, the fed, they are all multimember independent agencies, and so those agencies are all the traditional

humphreys executor agencies. and the concern i explained with the single director independent agency goes back to your point about federalist 47, which is if you have an independent agency that has -- is completely unaccountable to congress or unaccountable to congress or the president, and it's one person in charge, that becomes an extremely powerful position. >> but social security has been like that for a long time. my issue is when we were talking about executive power, you talked about how congress has to step in; right? that's a lot of the argument you have made to some of my colleagues, congress has to step in, but in this case, congress stepped in. congress said we had this major financial crisis. that's why we started this agency. we have done this. and then you come in and in a minority opinion here, and you say that it's unconstitutional. and i would throw another federalist society back at you, federalist quote, you quoted hamilton yesterday from federalist 83 when he said the

rules of legal interpretation are rules of common sense. right? >> yes. >> okay. so it just doesn't make common sense to me that we would throw an agency out like that or -- >> but i didn't -- >> you're basically putting your judgment in the place of congress. >> but i didn't throw the agency out. i said the agency could continue operating as it was. the only change would be instead of being for cause removal, it would be at will removal. there was a judge, not me, on our court who said because of that constitutional flaw, the whole agency had to stop operating. i specifically and explicitly rejected that as a remedy and said no, the agency can continue operating and doing its important consumer functions. >> let's go to one where you actually did throw out the rules and that's net neutrality; right? and that is in my mind a bedrock of free and open internet, allowing consumers and small businesses to have equal playing

field. but in your own opinion, you went out of your way to dissent against the protections. this was the full d.c. court against you, and the rules were upheld by a panel of judges appointed by presidents from both parties. and here you relied on something else that you came up with called the major rules doctrine. and i know it's been mentioned in a 2015 case but in claiming that the fcc lacked authority to issue net neutrality rules because they were in your words major. so again, it feels to me like congress set up the fcc and the fcc is doing their job and they are really complex policy matter, they put forward these rules on net neutrality, and then you insert your judgment to say that they are unconstitutional. tell me why i'm wrong. >> the major rules doctrine or major questions doctrine is rooted in supreme court precedent, and therefore, as a lower court judge, i was bound to apply it. it was applied by the majority

opinion in the brown & williamson decision. in the godfather of the major rules or major questions doctrine is justice breyer who wrote about it in the 8 0z. the supreme court adopted that in the brown and williamson case and applied it in the case you referenced, justice scalia's opinion. in that opinion it says it's okay for congress to delegate various matters to the executive agencies to do rules, but on major questions of major economic or social significance, we expect congress to speak clearly before such a delegation and that had not happened in my view with respect to net neutrality. i felt bound by precedent therefore to apply the major -- ::

>> i would say it's a pattern of adhering to precedent. >> this means the president to me that when you look at for instance chevron, and the white house counted the fact that you've overruled the act 75 times and they said that you led the effort to reign in executive agency in the press release when you are announced . what does that mean, how you lead the effort? >> i don't know what that's

referring to. i know my record. i'm sure i've upheld agency decisions dozens and dozens of times but we get agency cases, that's what we do on the dc circuit and i've upheld them i'm sure in the same way if not many more times. >> my record will show that i go both ways on those kind of cases. i don't have a pro this for pro that. >> one last question in this area on consumer, so a major rule of doctrine that raises questions to me about your view of chevron and as you know, it said it's in 1984 case and i don't think it's federal law but i would ask you that work refer to reasonable interpretations of agencies and what would you replace it with if you're not going to uphold it? >> the president says that

courts should defer to reasonable agency interpretations of ambiguous shoots and the whole question of ambiguity has become a difficult inquiry, or at least it has been in my years of experience, how much ambiguity is enough? i wrote an article in the harvard law review about that problem of judges disagreeing about ambiguity and i also said in that article that chevron serves good purposes in cases where it's somewhat of an overlap with the state farm doctrine so statutory terms like feasible or reasonable our terms of discretion are granted to agencies and the courts should be cable careful not to unduly and guess agencies and i've written opinions and the radio only where i've made clear that the courts would be unduly second-guessing agencies. >> i want to move to campaign finance as those are not the

documents i received and were able to make public, of course i think they all should be made public, and i don't like this committee classification that what happens, allow me to make those public and in those documents, in one email from march 2002 to discuss limits on contributions to candidates saying, and i've heard you people say the limits on contributions to candidates are unconstitutional although i for one tend to think those limits have constitutional problems. i just want to know what the buckley versus vallejo case, how do you view the president created by buckley? >> the buckley divide as you know is that expenditures on the one side, congress does not have substantial authority to regulate contribution limits on the other side. congress does have authority

to regulate and has done so but with respect to contribution limits, there are cases where the contribution limits are too low so music point to the email you're talking about, the supreme court has struck down contribution limits, one in the case randall versus terrel. as justice breyer wrote so i don't think there's, buckley versus vallejo is an importantprecedent. mcconnell , united fleshes out some of the -- >> my issue is we've had past nominees who said they would honor president and then they joined the citizens united union and when i was hearing your discussion with senator white house when you talk about how congress should step in and they did with the mccain-feingold bill and it was struck down basically with citizens united. so that is a problem. we are left with nothing now but a constitutional

amendment and i view this with a lawmaking from the court, the citizens united case so i'm trying to figure out where you are on this. do you think contribution limits constitutional problems and what can congress do to reign in the flood of money? >> as a circuit judge i've upheld contribution limits into important cases, one against the rnc in rnc versus fcc where it was challenging limits on contributions to political parties and i rejected that challenge and another, blue men versus fcc, contributions by foreign citizens to us election campaigns and i upheld that law. >> let's talk about the case. is your opinion left over from the possibility of spending my foreign nationals in the united states on issue advocacy. the same kind of activity we saw by the russians in 2016 and in fact a russian company facing charges brought by special counsel mueller cited your opinion and arguing to

have these charges thrown out . does not concern you at all? >> our case dealt with contribution limits so that's what i was opining on in that case. i'm not sure that there are the state of the law and the expenditure limits is not before us in that case, so i don't want to opine on expenditure limits. >> did you know that opinion was cited? >> i don't know if it was cited. i don't want to talk about a pending case but my case, importantly i upheld limits on contributions in the rnc case and in the bloom in case and the supreme court has upheld contribution limits but struck them down when they are too low. >> in light of the recent indictments, do you stand by your interpretation of the bipartisan reform actin this case ? and the aluminum case?

>> i'm not sure. >> let me go back to it onthe second round . antitrust. senator lee and i run an antitrust committee and as you know in recent years we talked about this in my office but the supreme court has made it harder to enforce antitrust laws in cases like trombley, legion and most recently ohio versus american express.this could not be happening in my view at a more troubling time. we're experiencing a wave of industry consolidation, increasing more than 50 percent between 2010 and 2016. i'm concerned that the court, the roberts court is going down the wrong path and your major antitrust opinion would have subjected challenges to murders that majority found to be anti-competitive so i'm afraid you're going to meet move it even further down

that path darting with the 2008 whole foods case where whole foods attempted to buy wild oats market and it's going to go to the depths of it for my opinion, the majority of course and the, what happened is the republican majority fcc challenges the deal and you dissent and you apply your own steps to the merger. my single question is where did you get the pricing cast? >> i would have affirmed the decision by the district judge in that case which allowed the merger in the district judge, judge friedman, appointee of president clinton to the district court and i was following his analysis of the merger and the cases vary as i think we discussed very fact pacific, it turns on whether the larger supermarkets sell organic foods or not. >> but where did you get the pricing cast is what iwant to know . you use a different test and

i'm trying to figure that out, what legal authority acquires the government to satisfy your standards to block the merger. i think what i remember in our discussion, you said in these nonbinding horizontal merger guidelines that you use to come up with this test? >> you are looking at the effect on competition, what the supreme court has told us from the late 1970s is to look at the effect on consumers and what the effect on the price is or consumers and the theory of the district court in judge friedman in this case was that the merger would not cause an increase in prices because they were competing in a broader market that included larger supermarkets that also hold organic food. the question is is there an organic food market solely or is there a broader supermarket market?

>> i was trying to get to where that no new testing so in the second case, you also dissented in the anthony case last year and your opinion would have allowed a merger between two of the four nationwide health insurance providers which was eventually blocked because it would lead to higher prices or healthcare in the long term and what was viewed as poor quality insurance and here you went a step farther than whole foods, instead of trying to raise the bar on what the government would have to prove to block a merger, you try to lower the bar for emerging companies trying to justify their deals and your opinion suggests you would lower the bar for emerging companies trying to prove their deal will not harm competition. does that represent your views when it comes to mergers? >> it's a very fact specific case and the market in question were to health insurers that were not selling health insurance in the downstream market but

were acting as agents for employers in the upstream market where they negotiated prices of hospitals and doctors so the theory of at least as i understood it, which i agreed with was that by having a stronger purchasing agent, they would be able to negotiate lower prices from hospitals and doctors for the employers, and i pointed out at the end of my dissent senator, that there might be a problem in the upstream hospital doctrine market but i did not think there was a problem in the market at issue in the case and i said i would have sent it back to the district court for analysis of whether themerger was a problem . >> but you did suggest the court should disregard to cases that have been relied on for more than 50 years. do you think courts now applying these cases are wrong to do so? >> i think the supreme court in the 1970s moved away from

the analysis in those cases because those cases focused on the effect on competition. i mean, on competitors, not competition in the 1970s. the supreme court moved to focus on the effect on competition which in turn is really consumers, what would be the effect on consumers . >> senator cruz. proceed. >> this antitrust issue is dense but i am very concerned about what's going on with these cases nationally and when i look at these two cases, it appears to me that you would go even further and i think we need less mergers, not more andmore competition. >> when i referred to the overlap ofchevron and state farm, that's what i was talking about feasible and reasonable . >> senator cruz . >> thank you mister chairman, welcome back judge kavanaugh.

thank you for your service. i wanted to take a minute to recognize and thank the outstanding work at this hearing by the capital police in terms of in a calm and professional manner dealing with the unfortunate disruptions we've seen and maintaining an environment where this hearing can focus on the record and substance of this nominee so thank you for the tremendous work that the men and women here are doing. >> mister president, we'd like to second that sentiment on our side as well. >> thanks to both of youvery much. i've expressed it to the policeman individually as i see them . starting 30 minutes over. >> judge kavanaugh, let's start with a general question. what makes a good judge? >> senator, a good judge is independent first of all. there are constitutional

systems, someone who's impartial, who is an umpire, not wearing the uniform of one litigant or another, one policy or another. someone will read the law as written, informed by history and tradition and precedent, the law is informed by the canons of construction addled in statutory cases. that treats litigants with respect , that writes opinions that are understandable and that resolve the issues. i think civility and collegiality make a good judge, a good judge understands that real people are affected in the real world, there are litigants in front of them and also other people affected by the decisions, the judge decides or the court decides in a particular case. a good judge pays attention to precedent which is on constitutional cases of course rooted in article 3

and critically important to the stability and predictability and reliance of interests protected by the law so there are a number of things that go into making a good judge. a work ethic, it's hard work to dig in and find the right answer in a particular case and i think that's critically important as well. judicial temperament, there are a lot of factors that go into it and that's, those are some of them, i'm sure there are more. >> one of the things i was looking at, it's striking both overheated rhetoric we've heard from some of our democratic colleagues and also from some of the protesters over the last two days. i took a look at your record compared to that of judge merrick garland. judge garland of course was appointed to the dc circuit by bill clinton area and he

was president obama's nominee to the us supreme court. what i found that was striking is that in the 12 years you've been on the dc circuit, all the matters that you and keep chief judge garland havevoted on together, that you voted together 93 percent of the time . not only that, of the 28 published opinions that you've authored, where chief judge garland was on the panel, chief judge garland joined 27 out of the 28 opinions you issued when you were on a panel together. in other words, he joined 90 percent of the panel opinions that you've written when he was on the panel with the same is true in the robbers, 30 published opinions that she justice garland has written on a panel, you joined the eight out of 30 of them. over 93 percent of those. what is your reaction to those data and the level.

>> i think we are trying hard to find common ground and to as i've said before, he's a great job, great job and he's very careful and very hard-working and we work well together. and try to read the statute as written. read the president as written and he's a judge who does not like i tried to be as well, judge is not trying to impose any personal preferences under the decision but take the law as written and that's what i've tried to do in those cases. that probably explains some of that. it also goes back to i don't think judges are distinct from policymakers and i think that shows up when you date into the actual details of how courts operate and go about theirbusiness .

as you can see from your arguments, you see judges decide cases in real time and i think those statistics reflect but reality of how judges go about their business. i've said several times that i think the supreme court is a team of nine and i tried to be a team player. of course there are going to be disagreements, i don't want to overstate but if you have that mindset of we are records without seeing sitting on different sides of the nile, without being in separate politics rooms, trying to find the right answer is, there is a right answer in many cases . and maybe, you know, a range of reasonable answers and others and i think that's what the statistics reflect for me. >> you talk about the difference between your own policypreference in the law . , a mandate.

how would you describe a judicial activist?>> i would describe a judicial activist as someone who lets his or her personal policy preferences override the interpretation of the law and can go either direction. though a judge who strikes down the law as unconstitutional and attacks the president that don't support that result or a judge in the other direction holds the law as constitutional when the text and the president would suggest that the law is in fact unconstitutional. so to inspect cases the same principle, when a judge is not with the compromises that you reached and written into the text of the statute by congress and signed by the president, but thinks the judge can improve on it. in some way or maybe pick specific out of a committee report and says i agree with that review in the committee report and i'm going to superimpose that onto the

text of the statutepassed by congress . that's me textbook definition of a judicial activist, adding to or subtracting from the text as informed by the president.>>. >> your time on the circuit, you've written a number of opinions addressing operational powers. why does separation of powers matter? why should american at home watching this on c-span care about separation of powers? >> people should care about separation of powers because it protects individual liberty. it the foundational detection of individual liberty . we think of the first amendment, freedom of religion, freedom of speech. as foundational protections of individual liberty but as justice scalia used to say, the soviet constitution had a bill of rights but it was

meaningless in operation because they did not have an independent judiciary, they didn't have a separation of powers system to protect those individual liberties so it works in two ways i think for more than two ways. first, the independent judiciary that helps enforce those rights, the whole structure as i've explained till stored liberty in the fact that you have to start with a system that hard to pass a law that affects what you can or can't do, it's hard to get a walk through congress and that's by design. the bicameralism principle, the house and senate as well as the president was designed to prevent the passions of the moment from overwhelming and enacting a law based on the passions as opposed to a more difficult process. all helps the individual liberty and after you pass a law, the president has discussed with senator klobuchar about discretion.

who is protected by prosecutorial discretion. "ultimately it protects individual liberty and even when the congress has passed the law and the executive is enforce the law, that doesn't mean you go straight to prison. if you're charged with a crime, you go before an independent judiciary and to add further protections for liberty, you have the jury protections that are in the original text of the constitution and reflected in the bill of rights so in check after check, the constitution tilts towards individual liberty. separation of powers also ensures that there are checks on the branches though what do we do for example, members of the congress don't serve for life. you have to run for reelection and that's a check again to help individual liberty, to help ensure accountability as well .

so the documents is just chock-full with protections of individual liberty and that's ultimately why the separation of powers matters. as much as the individual protections that are in the bill of rights and also in article 1, section 10 of the original constitution. >> about the doctrine of federalism? that's a doctrine you have encounters as much irving on the dc circuit can you share with us why federalism matters and why americans hearing this at home should care about the principles of federalism? >> federalism matters for several reasons, senator. it helps further individual liberty in the sense of additional protections so let me give you an example. if the u.s. constitution only protects against unreasonable searches and seizures up to a certain line, it's possible your state constitution will protect you even further under that for your legislature might protect you

further so further protections of individual liberty. federalism also operates on a different way, a laboratory of democracy in the sense of experimentation around the country, that's not always the same views in texas that might be in california, for example, on particular issues and you have different laws. and at different laws in those states. and also i think federalism turns the more general idea of the government that is closest to you for most of your day today activities. my wife of course is in local government now as the town manager federalism, the things that affect on a daily basis, the saving of the roads, the trash collecting, the local schools which is probably the most direct impact that many people have of the government, the local court system, my mom of course wasa state . the whole system of state

government is most people's interaction with government and federalism in that sense makes ensures accountability so that you know better usually, your local and state elected officials than you do and you can therefore make your views known on whatever governmental issues are of concern. for example, the schools is a classic one. >> what is the importance and relevance of the amendment? >> the 10th amendment is protects federalism in the sense of ensuring that states have independent sovereignty and make clear which is also clear from the structure but we enforce the idea is sovereign entities that have independent authority under the constitution and that they have the status of separate sovereigns under the constitution so you are

solicitor general of texas, i know you represented the state of texas in many cases where the sovereignty of the state of texas that passed this law and to enforce its law was critical. and the sovereignty of the individual states is important for the people, again, both for the accountability, local government and also for the protection of individual liberty and the 10th amendment underscores that. also makes, helps underscore something else which is the states can be commandeered by the federal government, commandeered the supreme court which recognizes that and this is from the structure as a wholeóbut the federal government can't order states to do certain things that the state themselves have not chosen to do. and so that's an important part of the federalism principle is recognized by the supreme court which comes out of the constitution as well. >> what you make of the ninth

amendment? robert bork famously described it as an inkblot. you share that assessment? >> the ninth amendment and the privileges and immunities clause in the supreme court's doctrine of substantive due process are three rows of that someone might be that all really need the same destination under the president of the supreme court ãwhich is that the supreme court precedent protects certain unenumerated rights , so long as the rights are as the supreme court said in the watford case rooted in history and tradition. and justice kagan explained as well in her confirmation hearing that the blacksburg test is quite important for allowing that protection of unenumerated rights rooted in history and tradition which the president definitely establishes, but at the same

time making clear that when doing that judges are just enacting their own policy preferences into the constitution and an example of that is the old case where oregon passed a law that said everyone in the state of the 1920s, everyone in the singapore non-had to attend every student have to attend a public school and a challenge was brought by that by parents who wanted to send their children to a parochial school. a religious school and the supreme court ultimately upheld the right of the parents to send their children to a religious tokyo school and struck down oregon law and that's one of the foundations of the unenumerated rights doctrine that folded into the watford and rooted in history and tradition so how you getthere is , there are as you know well senator, there are stacks of barbecues written to the ceiling on all of that , whether it's privileges and

immunities, substantive due process but all roads lead to the watford test, but if the supreme courthas settled long as the proper test . >> let's talk a little bit about the first amendment. free speech. why is that an important protection for the american people? >>. >> it's one of the bedrock of american liberty, the ability to say what you think, to speak politically first of all, about a policy issue and to speak about for example who you want to support for elected office is a critical part of the free-speech principle. but it's broader than that. it's the idea that there's no one truth, necessarily. that one person can dictate from on high in terms of

policy issues or social issues or economic issues, and that's the truth or at least an answer emerges as to the debate and over time and that freedom of speech is important to help advance that cause of the debate. and it's important that as an individual matterto have that protection written into the constitution because you may have an unpopular view . at aparticular point in time ,and if that you were suppressed , that you would never take old even though that you would be the better view. so it's a particularly important in the supreme court precedent i think protects unpopular views or views that seem out of fashion or out of fashion at a particular moment in time because of both the inherent dignity that provides individual people but also for the broader purpose of advances societal progress

for economic progress and social progress. most good ideas are unpopular at one point or another and take time to take hold in i think the framers understood that, where they came from and how they had to fight against suppression of speech and suppression also of religious liberty of course and how they came about so free-speech is critically important. justice kennedy and justice scalia in texas versus johnson, what could be more unpopular than burning the american flag, they upheld the right to do that, not because they like it and that's the whole point of this kennedy's concurrence but because they thought the first amendment had to protects the most unpopular of ideas in order to accord with the president and principle of free speech. >> you mentioned religious

liberty. religious liberty is one of our fundamental liberties cherished by americans across the nation, the right to live according to our faith, according to our conscience . can you share your views on the importance of religious liberty and how the constitution exit? >> yes, senator. to begin with is important in the original constitution even before the bill of rights that the framers made clear in article 6 no religious test shall ever be required as a qualification to any office or public trust under the united states so that was very important, the original constitution that the framers thought it very important that there not be a test to become a legislator, to become an executive branch official, to become a judge on the religion, recognizing the religious freedom that we serve in public office. and then a horse in the first amendment to the constitution

ratified in 1791, the principle of religious liberty is written right into the first amendment to the constitution. and the framers understood the importance of protecting conscience. it's okay to the free-speech protection in many ways and no matter what god you worship or worship no god at all, you are protected as equally americans. i wrote in my opinion and religion, if you have religious beliefs, religious people, religious , you have just as much right to be in the public square and participate in the public programs as others do. you can't be denied just because of religious status and the supreme court has articulated that principle in a variety of different ways and in particular cases.you look at for example. >>.

[shouting] >> in other countries around the world, in china for example, you. [shouting] when you look at other countries around the world, they're not as, you're not free to take your religion into the public square. crosses were being knocked off to, for example or you can only practice in your own home, you can't bring your religious belief into the public square.

>> in being able to participate in the public square is a part of the american tradition i think as a religious person, religious speech, religious ideas, that's important. so too on the establishment clause. [shouting] >> some of those cases are particularly complicated in the supreme court precedent, the president for example in the town of restasis and others as recognized the, some religious traditions and governmental practices are rooted and sufficiently in history and tradition to be upheld and so in that case, the town of greece case, the supreme court upheld the practice of a prayer before a local legislative meeting as chambers of course, also a local town being, marsh versus chambers upheld it in

a legislative meeting as well so the religious tradition reflected in the first amendment is a foundational part of american liberty. and it's important for us as judges to recognize that and not, and recognized to that as speech as unpopular religions are protected, our jobs under the religious freedom restoration act. but for thecharity of religious belief meaning is someone lying or not, we can't question the reasonableness of it . the supreme court has cases with all sorts of religious beliefs protected, justice brennan really the architect of that religious liberty is critical to the first amendment and the american constitution. >> how would you describe the interaction between the free exercise clause and establishment clause and are they at cross purposes in inattention or are they complementary?

>> in general it's good to think of them as both supporting the concept of religion and in the case i wrote, i tried to explain some of those principles but i think it's important to think that we begin with your ugly american no matter what religion you are, through no religion at all. thanks also important the supreme court has said that religious people be allowed to speak and serve, participate in the public square without having to sacrifice their religion in speaking in the public square for example or practicing their religion in the public square. at the same time, i think both clauses protect the idea or protect against coercion people into practicing a religion when they might be of a different religion or might be of no religion at all so the coercion idea

comes really out of a closet as well. the cases that are establishment clause cases that don't involve coercion what are some of the religious symbol cases as you well know senator, that they, a body of law but in each area of that has to be analyzed on its own silo as a general matter i think it's good to think of it, you clauses working together for the concept of freedom of religion in the united states which is foundational of the constitution . >> when you were in private practice, you represented the .shalom synagogue pro bono, you did that for free. can you describe this committee that representation and why you undertook it? >> i undertook that representation to help a group of people that wanted to build a synagogue but were being denied the ability to do that based on a zoning

ordinance that seemed to be the application at least of a zoning ordinance in a way that seemed to be discriminating against them because of their religion. that may have allowed other buildings to be built there but the, they were being blocked or at least allen's from building a synagogue there so it seemed to me potentially a case of religious discrimination. that was being used try to prevent them from building so i wanted to, iagreed to represent them . because i like, i wanted to do pro bono work and i always like to help the community and that case in particular i thought the people would want to go there synagogue have the right to do so. asi saw under the law , and i thought i could help them do so and we prevail in the district court in maryland and that synagogue now stands

and they, they were very grateful and so that was the kind of litigation that a couple years, i was at a law firm that did pro bono work and that was very rewarding work, to have a real effect on real people in their practiceof their religion . in the state of maryland so that something that means a lot to me. they gave me something, anything to hang on the wall, justice house shall pursue. which i've hung on my wall in my chambers the whole 12 years i've been there just as a reminder of a representation i had in the past and the importance of equal treatment and religious liberty and a successful robo representation . >> i'll note some of the democratic senators on this committee.

>>. [shouting] >> representing thesynagogue in the power of government . >> it's very much interesting that you chose to give your time and your energy and your labor for free. to a litigant that i think most would be dealing with with the little guy. >> that's correct center and i tried as a judge always to rule for the party on the best argument on its merits and that included workers in some cases, businesses and others, callminors, environmentalists and others . unions in some cases, employers and others, criminal defense and others and i have a long line of cases in each of those categories. the little guy, big guy is,

i'm not the relevant determination. if you're the little guys so busy and you have the right answer under the law, then you will win in front of me. >> earlier in the questions from senator graham, he asked you a question are you a republican and then he asked it in present tense and your answer, you acknowledge that you have been a registered republican and indeed usurped in a republican administration previously. >> but of course you've been a federal judge for 12 years. do you consider yourself a republican judge? >> i'm not sure what the current registration is, but shortly after i became a judge, i assume the registration, i changed it but i don't know if it's listed but after i became a judge, i voted in one election. i decided i'd read about the second justice arlen having

decided that he didn't want to continue voting while being a federal judge and i thought about it. that practice and i would be the first to say i'm not the second justice arlen and i'm not trying to compare myself in any way to him but i thought that was a good model for a federal judge to underscore the independence because we're not supposed to participate in political activities but rally, gave money and that kind of thing and it seems tome that voting is a personal expression of your policy believes in many ways , your personal beliefs and i'm not trying to -- >> time is expiring and i want to end on a lighter note. you both had the choice of coaching our daughters in basketball. can you tell me what have you learned coaching your daughters playing basketball? >> it's been a tremendous experience to be able to coach them for the last seven years and all the girls on

the team and i've learned about something i saw in my own life , the importance of coaches is the development of america's youth. teachers two. approaches can have such an impact on building confidence and you see a girl develop confidence over time or you see that competitive spirits, teamwork. the toughness that developed over time, thedrive . when with class, lose with dignity. the ability to lose but still put forth your best effort. so i've learned just how important, i think i understood that from my own experience but learn how important it is for coaches and the effect they can have on people's lives and i've heard from a lot of parents

over the last eight weeks while i've been in this process . about the fact that i had on some of the girls lives which was nice to hear in terms of my coaching. like i said yesterday, coaches have such an impact on people and i've learned that, that's why senator kennedy said in hismeeting, i hope you keep coaching . and i'm going to try to keep coaching, banking center . >> senator cruz. >> thank you judge kavanaugh. as we discussed in my office and in the letter i sent you the follow-up, i hope to question you about your views on the rule of law, separation of powers, presidential power and the chairman, i'd like to start by entering into the record a series of questions that lay some of thefoundation for my concern . >> go ahead.

>> first, who is brett kavanaugh? second, the kavanaugh nomination must accuse himself by former third circuit judge timothy lewis, white house ethics council and harvard law professor. third, brett kavanaugh's radical view of executive power . brett kavanaugh is devoted to the presidency by law professor garrett and his legal opinions show the unprecedented new powers for the professor children. >> as i previously said without her. >> in your be the third one was?>> i want to make sure i know the name. >> was brett kavanaugh's radical views by brown university professor brett schneider, if i'm not mistaken that's not a law professor though . >> the range of opinions from a range of bolts . judge, the rule of law required those who are governed to those who govern

both be bound by the law and a key way to ensure as you said in your opening that no one is or should be above the law is to ensure that the president is not above the law by preventing him from firing someone appointed to investigate him. sitting on a panel at georgetown in 1990 you took a different view. you said that time and i quote, the prosecutors should be will by the president. and what's in your record, a long record of writing and speaking a stop, i think there's legitimate cause for concern about your views on presidential power and whether it's possible for president to you so you would protect them . please answer directly, do you still believe a president fire will a prosecutor who is criminally investigated? >> that's a question of precedent and a question of, that could come before me either as a sitting judge on the dc circuit or if i'm confirmed as a supreme court

justice so i think that question is governed by precedent that you have to consider. united statesversus nixon , the special prosecutor regulation that case , was issued in the united states versus richard nixon. >> i'm just asking whether you standby your record , something that you chose to write in 1998. you expressed a view at the time that a president can fire at will a prosecutor criminally investigating him. it is that you're still yourview? i'm not asking for a recitation of precedent, i'm just trying to make sure i understand if you stand by the view in 1990 . >> that was my view in 1998 . >>. >> let's move to a more recent statement that i think is equally important. in the wake of the watergate

presidential scandal of precipitated by a president who committed some crime and then was investigated, congress passed the independent counsel statute, a statute which restricted in part when the president can fire an independent counsel and during the recent speech of claim 16, you described this law as and i quote, a google both watergate reform and a constitutional travesty. then you stand by your criticism of the independent counsel statute as a constitutional travesty?>> that was an understated compared to what members of this committee and others said in 1999. >> i'm interested in your views, not members of this committee and when you chose in a public speech as a sitting judge to say that was a constitutional travesty, you have something in mind. >> what are your views on this accident and why do you view it as a constitutional travesty? >> this is the old

independent counsel statute, that's distant from the special counsel system that i specifically said is consistent with our traditions. i said that in the georgetown article as you know. i said in the phh case most recently. the statute you're talking about, independent councils that was a distinct regime that congress itself decided not to reauthorize in 1999 and i think senator durbin was unrestrained, unconstitutional statute. >> if i might judge, in your view, you chose to describe the independent counsel as a constitutional travesty, what do you mean? >> i met when justice he said at stanford a few years ago that justice scalia dissent in morris versus olson was one of the greatest dissent ever written. i identified justice scalia's dissent is one of the greatest ever written, just

as he seemed to be saying at least i think this is the only reading of it that the morrison versus olson decision was wrong. >> i'll stronglydisagree. you offered that quote , fight just to stay in when we met and i was that you would call justification and to tell her one of your judicial heroes. excitation is literally true but misleading in context. just as kagan wrote in 2001 wrongly rejecting the executive theory which is at the root of the dissent in morrison the olson. i believe justice kagan was complementing the forcefulness and clarity of scalia's writing, not agreeing with the legal theory. >> i think i disagree with that, senator. >> i look forward to exchanging papers in this tomorrow, we'd have more fun on it but it's an important point. >> i've read that article, it's a great article, by justice kagan, then professor

kagan, she was referring to independent agency generally . [shouting] i think she's referring there, at least i read her as referring to independent agencies are traditional and permissible. the independent counsel statute was something different from the traditional independentagency that existed with the federal trade commission , the securities and exchange commission so i did not read her article to in any way -- >> let's put it this way, justice kagan may have complimented scalia but you criticize the statute as a constitutional travesty and i'm trying to get to the bottom of why you held that you and why you chose to say that in a speech two years ago . >> morrison versus olson was a one-off case about a one-off statute that have existed for years. the statute is gone. the case as justice kagan, i

think i might lead from her comment. i know i've cited it many times in beaches i've given but that statute is real important to be clear here and so everyone understands, that statute hasn't existed since 1999. >> but it is law, is it not? holding my court, even though the independent counsel statute has passed into history, morrison versus olson is still law your own circuit said soforcefully this year . >> i think that's a yes, sir no question, but easy circuit held this year in phh that morrison versus olson is still good law. >> i think they were applying a priest, they might have cited more. >> they literally said and i quote morrison remains binding precedent. and criticize your minority

as lying in the face of morrison. >> again, we are talking about independent agencies of the traditional independent agencies on the one hand and the old independent counsel regime that is long gone. on the other. and the independent counsel regime, this committee and the congress as a whole decided it was a serious mistake. justice, mincing words, unrestrained, unaccountable and constitutional. >> what i'm concerned about is not so much whether there are members of this committee or other justices who viewed the independent counsel statute as a serious mistake whether you view morrison versus olson and the majority holding as a mistake let's move to that point if i could. and morrison versusolson, the court upheld the restriction on the president's power to fire the independent counsel . 5071 in an opinion written by

your first judicial euro, chief justice rehnquist. it was only justice scalia who dissented in arguably a well-crafted defense but for those injustices, they wrote an important decision which i believe you have challenged and criticized because it restrain the president power to fire the independent counsel. two years ago, you were asked at a public event to name a case that deserves to be overturned. any case. and after a pregnant pause, you said i can think of one, there was chuckling. and then you said well, sure, morrison versus olson and i'm struck by that having watched that speech, not these cases that are taught to all first-year law students is a terrible example of shameful decision. you chose morrison versus olson to say it already been effectively overturned which i disagree with and i would put the final nail in the coffin. so here's a recent public statement by a sitting easy circuit judge that is now

performing as a nominee to serve on the supreme court like a question. would you vote to overturn morrison? >> center, personal motto has been overturned and brought to bell as a disgrace. >> it's striking you didn't choose either of them. you reach out and say this 30-year-old decisionabout a statute long gone ,that's the one i'm going to hold up to get rid of . >> and i really did have justice kagan comments foremost in mind. i thought he had already talked about morrisonversus olson . >> nothing todo with a view of presidential power ? >> i've written about the special counsel system and i said in the 1999 georgetown

article that the special counsel system is a traditional approach that's used when there's a conflict of interest in the executive branch and there's a need for an outside counsel and i said when i said that again in the tha case decided. >> is the special counsel viral will ? and that's your conception of what's the most appropriate? >> the hypothetical you're asking me and i think what that depends on is there some kind of restriction on for cost protection, either regulatory or statutorily that is permissible that is different from the old independent counsel for example and that's the kind of open question, great area question that you would want your greek at the oral argument, that you've been mind on, what is the specific statute you have issue? the old counsel a lot of moving parts to it were all of which were novel and together produce justice scalia dissent. i don't think anyone affects. >> given your enthusiasm for justice scalia dissent, given your choice is a i would put

the finally in, let me go back to that question. would you vote overturn morrison? >> i'm not going to say more than what i said before. >> i think what you said before is clear, your enthusiasm for overturning morrison is unmistakable. >>. >>. [shouting] >>. >>. [shouting] >> i want to make a few things important, one of which is executors for the precedent that stands and i call it an entrenched precedent on independent agency generally and the two is the special counsel system was in the phh decision recently and in the old georgetown law journal which i specifically said that that's the traditional way that criminal investigations proceed when there's a conflict of interest and the

usual justice department process is not appropriate. >> that's in federal law for 83 years, right? early on you said you would be able to produce on long settle cases. can you tell me if executor was correctly, long settled precedent, you said that about a number of cases but the key differences whether he will say that something is rightly decided.i'm struck about this and we are concerned about it because in your own opinion in your dissent in phh, you went into a long criticism of humphrey's executor, at least that's how i read it. you laid out a strong articulation of this unitary executive theory that the president is imbued with all the power of the executive branch which is the dissent in morrison which is a radical theory that has been rejected by the supreme court . >> i would argue. >> you go on to say that humphreys executor is long

settle but you know, if we were to overturn it, it would mean the elimination of independent agencies. why did you need to go there? why have that conversation alongside case? >> what i said in the phh case is that humphreys executor is the president of an executive agency dozens of times, congress executor would, what concerns me constitutionally as a judge in the phh case was that the tf bb did not follow the traditional model of an agency and therefore parted from this traditional exception, one might say the idea that a single president control the executive branch and iexplained all that . that having one end of an independent agency diminished presidential authority more than humphreys executor and

pose a serious threat to individual liberty and was a departure historical practice under the supreme court makes a big difference as you know course. so i preferred, that's why i concluded in the cfp case that the statute was, the bureau was unconstitutionally structuredbut the remedy was not to get rid of the whole agency, the remedy was to make the person removal will . >> humphreys executor was about whether the head of the fcc could be removal will or have a goodcause removable protection . >> president roosevelt wanted to fire humphrey. >> will you simply state that it is well reasoned, well decided long settled civil law? >> i'll say it's an important precedent i've applied several times. >> it's troubling to methat you can't say that humphreys executor was well decided . >> i'll follow the nominee -- >> are very versus madison.

>> of course, of course it is. the judicial view wasn't even invented in marbury versus madison, it's right here in the constitution and also referred to in federalist 78, we mistakenly say marbury created . it actually exists right there but it's a direct application but the reason i'm hesitating. >> let me bring this back to the current context and why this is of concern to me. >> but i refresh my answer. >> we have a series of public statements about your enthusiasm for overturning morrison. and you're not going to comment on the here, you won't answer that question here. got a recent decision as a dc circuit judge ware who forcefully articulate this unitary executive theory that would give the president significantly more power and humphreys executor is inany rest , they can see a whole series of agencies moved or simple series of long-established protections from will removal at some

risk. let me make sure i get this right. in your view, can congress restrict the removal of any official within the executive branch? >> under the supreme court precedent which i've applied many times and humphreys and referred to it as an entrenched precedent, congress historically has restricted removal of independent agency heads and that is law that has been in place for a long time. in morrison, you may disagree with one about the same reason that i think justice kagan probably felt free to talk about morrison and i did as well that it seemed a one-off case about a statute that doesn't exist anymore and that humphreys is the president on independent agencies. you may disagree on that but i think that's the premise on which, i don't want to put words in her mouth but that's certainly a premise on which i spoke. i was not intending to do either of two things, say

anything about humphreys and not intending to say anything about additional special councils which i've explicitly distinguish from these multiple times. >> i'm just concerned. that i'm having difficulty getting what i think is a clear and decisive answer from you on anumber of things , but you overturn morrison, what's your view of executive.. is it appropriate for a president to fire a special counsel investigating him. i'm going to come back to a decision you rendered this year, missy hh decision and i heard those who are having any interest or trouble following it to read your decision in thiscase . because you layout, you embrace this theory of executive, that the executive has all the power of the executive branch which i think is relevant to the question whether a special prosecutor should be fireable will like president or could be protected from being being fired by the winds of the

president. this is a theory rejected not just by the supreme court in morrison versus olson but by a number of members of this committee in a recent boat, a bipartisan vote advancing a bill that's predicated on the idea that congress and impose restrictions on the executive's power to fireat will executive branch . >> but with respect center, i think you're significantly over reading what i wrote in that case. i think not anyway that i say that the traditional independent agencies anyway constitutionally problematic, in fact i took that as a baseline on which i said that this new agency departed from the traditional model. i did not cast doubt on humphreys in that case. at least as i read it. i guess you don't agree with the opinion but i explained in great detail what i thought this deviation from humphreys matter.

>> let's get if we could judge in a few minutes i got left to the question of investigation because this is also something you've written about, you've spoken about and it's related to this issue. back in georgetown on a panel in 1998 you said and i quote, it makes no sense at all to have an independent counsel investigate the conduct of a president. if the president were the sole subject of a criminal investigation i would say no one should be investigating . is that still your view? there is credible evidence that a president committed crimes , no one should investigate it?>> that's not what i said senator. so two things on that. one, the independent counsel, you're referring to theirit's important because people , you get this as distinct from the special counsel system so it's important. i specifically in that georgetown law journal approved the traditional special counsel system. >> that traditional special

counsel system as a council can be fired at will by the president, correct? >> in the watergate situation there was a regulation that protected the special counsel -- >> what happened to the special counsel in watergate? >> there was a new regulation put in place and in the usversus richard nixon, that was parked very carefully . >> that's exactly why your quote that the independent counsel statute was a google post watergate reform gave me some pause. >> but that was the statute put in place well after watergate. in watergate itself, the system that was in place was the additional special counsel system with a new regulation in after the episode you are referring to and then when the independent counsel system came up in 1999 or reauthorization, there was everyone here, everyoneagreed . i think i'm not --

>> you're not alone. >>it's not an exaggeration to say the court put up after that one was understanding what everyone said about the independent counsel . >> in a 1999 article, this is the american spectator article, you call it constitutionally dubious for a criminal prosecutor to have the responsibility to investigate the president. help me understand that. is that still your view that it's constitutionally dubious for a criminal prosecutor to investigate the president? >> i've never taken a position on the constitutionality. what all i've done is point out that as i did in the minnesota law review article that congress might want to consider a balance of, and that's when president obama was in office. >> this is just a policy argument. >> if i have a constitutional case come before me as a judge on the dc circuit or it confirmed on that court, i'll

have an open mind. i'll listen to the arguments, i'll dig into the history. i will have a completely open mind on the constitutional issue and again, priests and argument, i've also shown a capacity to, if i'm presented with a better argument and something i've had before, to adopt a better argument. i've certainly done that, a good example of that in the national security context and the personable wall case, i pointed out how i'd reconsidered something i didn't before in our national security context . but the larger point is that i have not taken a position on constitutionality before. >> i'll come back to a point we now talk about several times. in several different contexts in several ways, you've chosen to make a constitutional point, either expressing enthusiasm or returning 30-year-old long settled president or arguing

for the unitary executive theory that phh dissent or i'll give you another quote, in a different speech you said there justice phh never wrote a better opinion and his dissent in morrison versus olson and you may have been commenting on the quality of his writing but you want to say you believe his views will one day be the law of the land question mark. >> i assume you're you're talking about the constitutional analysis in his dissent and your expressing a hope, an expectation that it will someday be the law of the land. use it before me as a nominee to be in a sea wherethat will be within your reach . >> again, i just want to avoid melding a lot of different things into one, because they are very important . the first is the independent counsel statute and i view morrison as only being about independent counsel. >> but it's only about the independent counsel statute as i see it, and the

independent counsel statute doesn't exist, that's why justice kagan probably felt free to comment about morrison as well. and on special councils, i said that i've repeated many times here, on investigations and indictment of a sitting president, number one i've never taken a position and number two, it's important to underscore the justice department for 45 years, this is the justice department, not me, the justice department for 45 years has taken the position and written opinions that a sitting president may not be indicted while in office but is deferred not immunity but is difficult. and in randy moss was head of president clinton's office or legal counsel wrote a long opinion on that. he's now a president obama appointed district judge in dc and at the district judge. i'm not saying i disagree with that. i'm saying that the consistent justice department

view for 45 years so before a case like this would come before the courts on the dc circuit or otherwise, the justice department presumably would have to change its position, that's one. two, a prosecutor at some point in the future you have to decide to seek an indictment that of a sitting president at some point and three, it would have to be challenged in court . then all the recent argument and then it would come up on appeal in the dc circuit so there's a lot of things that would have to happen before this hypothetical that you're presenting even comes the past and it does come to pass, you can be assured that i have not taken a position on the constitutionality issue that you're raising on that specific question, at least as i understand the question and that's distinct from the morrison issue as i understand it. >> and i'll tell you again, the reason this is greatly

concerning to me, what i raised in our meeting and sent a letter and dedicated so much time to the question is i don't you the issue in the independent counsel statute in the morrison versus olson decision and dealing with some now long past statute in some sort of obscure irrelevant issue. i think the reason you reached out and volunteered that you overturning morrison versus olson because phh wrote amoving dissent, because of the view of the executive branch , having all the power of the executive branch and the presidents hands, that you've articulatedacross pages , interviews, writings and an opinion this year, i think that's really your view of the executive branch. >> i've never said that. i've never said that number one, so there are two issues here and i want to be very clear. one is this is how i read your dissent this year is arguing, advancing the unitary executive theory. >> i was there to a single president by saying the same

concept. >> single president means the president is the chief law enforcement officer and should have all the power of the executive branch including the ability to fire at will which is what the issue in all these articles. the ability to fire will a special prosecutor, correct? >> i have taken as a given in all these cases. >> that's a yes, sir no, i want to be clear and i'm going to be repeating myself that i've repeated what he said that humphrey's executor is a precedent that allows independent agencies in that i have applied time after time,.1. .2 design said what i said about the special counsel system being a traditional mechanism, .3 is i've never taken a position on the constitutionality of indicting , investigating a sitting president and .4 is that the question of who controls the executive power. >> on that point, you've never taken a position on the

constitutionality of investigating a president . it's this american spectator article where you said if there is an allegation of presidential wrongdoing, the congressional inquiry should take precedence including an investigation to any presidential associates. this american article was striking to me in which you said it was constitutionally dubious for a criminal prosecutor to investigate a president because the president should not be criminally investigated as during his term, but thateven his associates should beheld accountable through the criminal justice system. you mentioned you might make an exception for violent crime .and that's a last question , what presidential aide commits an assault? >> i never said anything like that, senator. >> i'll let you answerthat . >> i've not said anything approaching what your broad

description. there's always been a question based on the justice department's own position for the last 45 years, thejustice department's own position of , assumes that the proper thing to do is to wait for an that occurs after a president leaves office, that's because his term ends or because of the impeachment process, and that's how justice department, again, 45 years, that's been the law is not my law. that's the justice department's law with randy moss writing the most important opinion. >> i recognize i'm out of time and i like to conclude. i look forward to continuing this line of discussion with you in our next round, judge. i do think there is good reason or members of this committee, myself

principally, to be concerned about a whole range of things that you said, you've written and that you've decided as a judge about whether or not a president can be held accountable. i think the ability of a special counsel to conduct an independent investigation of the president is foundational to the rule of law. >> i've said the same thing i look forward to the next round -- but frankly judge, your views about executive power as i think you have detail in your statement about what you'd like to overturn and what limits you think there should be lead me to concern and it's because of our current environment we are operatingin and i look forward to another round and the more questions . >> i look forward to but what you said about special counsel is exactly what my article said in 99 and exactly what phh said. >> before i call on senator hatch, a couple things.

one, in regard to independent counsel statute, that issue in morrison, that statute was never renewed and does not have any effect today and we in congress chose not to renew it because it was nearly universally condemned. i often told senator durbin about independent councils unchecked, unbridled, unaccountable authority according to him, unchecked power is tyranny.we have eric holder, president obama's attorney general said the law was too broad to be renewed. also, i want to insert in the record 30 op-ed from all across the country that report the confirmation of judge brett kavanaugh to the editorial boards of the los angeles times, the chicago tribune, the wall street journal among those 30 supporting confirmation. without objection, i will enter into the record all 30 of these op-ed's.

>> mister chairman, while we are on that exact point, there are four committee confidential documents that i wanted to be able to question our witness about today. i'd like to submit those to the record. they reveal his thinking on a unitary theory. >> you have that and i can advocate that to get them, and we will put into it that just like we said to senator leahy, give us the citations and we will try toget them. so far, we've been very fortunate . senator sasse. >> judge, by my count you are about half done, congratulations. you'regoing to be here faster than that, i think . i wanted to talk about limited government in general and about limits on executive power in general. today has been senator cruz did a nice job complementing the capital police. today has been a tough environment to manage and we

are glad that people get our right to express their first amendment views and have a right to protest and i don't want to draw too much more attention to it because it disrupts the event but for things that have been said that are relevant to this question that have been let out in the last couple of hours. a few minutes ago: shouting please vote no on kavanaugh, the presidents shouldn't have power to do whatever they want. vote no on kavanaugh, he'll be a trump puppet. a separate one, he will support presidential criminality and executive immunity has no place in this democracy. i want to emphasize with concerns that people have about those kind of statements. and frankly, if i thought you would be a puppet for this or any president, if you would support presidential criminality, if you believe that executive immunity is something that is fitting for

our system or if you believe that presidents should have the power to do whatever they wanted, i couldn't vote for you either so i'm headed toward voting for you because i don't think any of those things are true but the american people need to understand why. already today you cited the federalist papers and said the president is not a monarchy. it would be useful to just have you back us up and go again, as senator coons asked a fair question but as a nonlawyer and many times we got lost in the lead weeds, but i'd like to have it at a high school sophomore level for a little while. if you can explain to the american people what the limits on executive power are , where do you start? >> i start with the fact that the president is elected by the people through the electoral process specified in the constitution so not a hereditary monarchy was something that was specified in federalist 69. the president serves a term in office, not an unlimited

term in office. again, specified federalist 69. the resident is subject to the law. no one is above the law in the united states including the president of the united states and that's something that is made clear in federalist 69. the president does not have absolute power to make the law. congress has the power to make the law, the president doesn't have the power to adjudicate as an independent judiciary has the power to adjudicate in cases and controversies along with a jury. as justice jackson's framework made clear, it's important to understand that even in the national security context where the constitution gives the commander-in-chief power to the president, the president remains subject to the law passed by congress.

so for example, as i said in writing my review of david darren's book on law, congress has substantial power, and this is often forgotten, substantial power in the war powers arena to either declare war, authorize war but also to regulate the war effort and congress has done so historically and currently including post-september 11 on issues such as interrogation, detention, military commissions, surveillance, congress has been actively involved inthose areas . historically and through post-september 11 and i've made clear in my writings that the president has very limited power in youngstown to disregard such a law. the historical example accepted by the supreme court is command of troops in battle for example.

that congress couldn't get in the middle of that but outside examples like that, narrow examples like that, congress can regulate the war effort. congress often chooses to give the executive branch broad discretion on the national security policy but sometimes not because the congress doesn't like what the executive has done, that's understandable. if something happens that seems bad, congress will say we don't want that to happen in wartime or otherwise international security context and justice jackson set forth that framework and that's a very critical part. where else would we expect the executive to utilize power but at the same time, what else is a greater time of threat to liberty than the national security context, youngstown deal being a classic example where the president said we'retrying to win the war . and that didn't work and by 6

to 3 vote, congress has passed. so to know president is above the law in the sense that a president remains subject to the supreme court said in the civil process, so that they president of the supreme court on civil suits, while in office. so to the criminal process, campbell specifies this in federalist 69, a president is not above the law with respect to the criminal process. the only question at the justice department, senator coons has applied now for 45 years is the timing of the indicted a question in the justice department through democratic and republican administrations and that should occur when the president leaves office either because his term or because of the impeachment process can i interrupt their

and have you finished because i think you are building a list that has a duration in time of the office of the presidency . the legislature may or may not have given to the executive branch power to fund things that may have authorities that may not have available to them. a lot of their your debate is an important debate, it's about personnel matters but second, let's play out this question of criminality versus civil charges. and i admit that i'm sort of as a non-lawyer, i follow in the tradition of the german being a nonlawyer. i don't want to be legal friends told me how you will run circles around me telling me why you can't answer but i want to start a hypothetical. imagine 10 years in the future, there's a president from the purple party. none of the current participants in public life, and this president runs for office with an instinct to celebrate self-reliance and he decided it will be apart of any motorcade .

and they're drunk one night and there's a motor vehicle homicide. that's both a criminal and a civil matter. is the president immune either being sued or charged with a crime because they are president? >> know, no one has ever said that the president is immune from civil or criminal process so immunity is the long-term to human think about this and this process. the only question has ever been debated is whether the actual process should occur while still in office, in the clinton case there were strong arguments for both sides and the court ultimately decided that the civil process go forward. president clinton was arguing that the civil process be deferred until after he left office and the supreme court rejected that. to the only question with the criminal process is not immunity . is the timing . and just as i said, the

justice department for 45 years at the position at the timing of the criminal process should be after the president leaves office. that doesn't prevent investigations gathering of evidence, questioning of witnesses. i would necessarily, i don't want to opine too much certainly how is proceeded under the special counsel system that we had traditionally have coexisted with the justice department's position on the ultimate timing question , so those are just hiding questions from jones versus clinton and from the justice department but immunity is not the correct word and i don't think anyone thinks that that's such a foundational principle of the constitution . and equal justice under law and that's what hamilton was concerned about in federalist 69, the framers were

concerned about. even with having you read the constitutional convention debates, even with having a single president, they were concerned that that may seem like a monarchy and that's why you need to convince the people that know, this is not a bar and out of the house and go about convincing the people? >> .. >> drive through west virginia and show you. [laughter] >> exactly. >> i want you to finish that list, i think you have duration of the president's term in office, specific authorities that the president may or may not have been given,

appropriations, personnel questions. are there any other cat -- i guess vertical and horizontal federalism so there isn't just legislative distinction here in my hypothetical, the drunk driving accident could have happened in virginia or maryland instead of d.c., and then we'd have to have debates about which level of government would be involved. are there any other categories of -- >> well, i think a huge one, really the hugest question as i've said many times in my writings in the entirety of constitutional law is the president's ability unilaterally to take the country into war. that really is, dwarfs all other questions in many ways. and hamilton made clear in federalist 69 that the answer to that question was, no. now, it's sometimes thought and opined by commentators or even scholars that, oh, actually that's changed over time, and actually presidents have -- that really has not changed in practice at least over time. obviously, there's no definitive

supreme court case. but you look at all the significant ors, and i wrote this in the book review of the barron book which i, you know, recommend to you, i think you would enjoy that, all that -- >> thanks for calling me a nerd on national tv. [laughter] >> i know you would enjoy it really. is the, all the significant wars in u.s. history have been congressionally authorized with one major exception, the korean war. and the korean war is an anomaly in many respects, and i think the fact that it was undeclared and unauthorized really did lead to the youngstown decision. but, you know, vietnam, the persian gulf war, the aumf against al-qaeda, the 2003 iraq war and then going back world war ii, world war i, the war of 1812. they're all congressionally authorized, you can go back throughout. and i specify that. so the war power, the power to

take the nation into war -- at least a significant one, and there's some questions about short-term airstrikes and things like that, but a senate war -- that's the biggest of all. and that's something that hamilton talked about in 69 and that our historical practice, i think, has actually lived up to. i don't mean to footnote korea, that's an enormous -- but since then they've all been congressionally authorized. people debate the gulf of tonkin resolution, but the words of it are quite broad. >> this isn't the place for this full detour, but i just want to underscore one thing you said about a hamilton and just in the federalist papers more broadly, how many times we see our founders writing about the norms of our civics. and one of the things that goes wrong this these kind of proceedings is we so regularly conflate policy and politics with civics. and i think that our jurisprudence should fit inside our civics, not inside our politics because it's the overarching thing. we have -- ken burns often says

e pluribus unum is a core motto for america, and we have a whole bunch of infrastructure bus and very little unum right now. we should have a lot more unity about what we think the role of a judge is. and i think senator cruz did a really nice job of unpacking how often you and judge garland have been on the same side of issues, 93 and 96% of the time. your comments yesterday about being on the team of nine, about there being no center aisle that needs to be crossed over at the court, about there being no caucus rooms in the supreme court. that's another way of saying if we're doing sieve ins right in america -- civics right in america, we should be seeing fewer and fewer political disputes trying to be settled at the court. and it means we need to attend more to the norms. when things are going wrong in america, and we should all admit things are a mess in this country, the governance in our country. there's a lot that's great in america, but in the idea that in our public scare -- square we agree on much, we know that's

not true. and when you look at survey day at what high school students turn up if they try to take the nationalization test, and huge shares of high school juniors don't know we have three branches of government. shame on us, not same on them -- shame on them. washington thought civics were essential that when he was explaining what his job was as president and that it not be confused with a monarchy, he rebuked people from i bowing before him because we might confuse our kids and grandkids that the president is a monoaround city. one of the fundamental problems is that we're not doing a very good job of talking together in common about all the ways that all three branches of government should be limited. but let's go back the senator coons' point about personnel. i sit on the armed services committee as well, and one of the things that we do there -- i don't know, every second week maybe -- is that we have confirmation votes of dozens,

scores, sometimes hundreds of promotions and flag officers. and why do we do that? it's because there are all sorts of constraints on executive power at the level of personnel. and when somebody is getting promoted in the navy, when somebody's getting promoted at the air force, the congress actually has oversight of that. and because that process works so well because there is so much collegiality between the legislature and the executive branch, it tends to not turn up on tv. it's up a pretty pro forma moment at the start of our hearings even though any senator, republican or democrat, that wants to delay the promotion of those officers, we can do that. because almost all that stuff is moving by consent. so there are things where there's unity in hiring or in promotion, it's just a lot of that is noncontroversial so it doesn't end up salacious, it doesn't end up on tv. jump in, please. i know you're trying to say something. >> well, i think that's an important addition that the president -- and this goes to senator coons as well -- does

not have the unilateral power to, under the constitution, to appoint even members of the cabinet which, if you were thinking of a monarchy, of course you'd be able to dispense offices and dispense -- you can't create offices, first of all, and can't unilaterally fill even secretary of defense or secretary of state because the framers were so concerned about overbroad executive power that they required senate confirmation for even those positions who, if confirmed, then become executive officers. that's another really hugely important check on the executive branch which is a reality. and, of course, the confirmation process for executive officers, as you say, becomes part and parcel of the oversight in many ways. and i think that's very important. and i think we spent, i spent a little too little time. i mentioned it on appropriations, but that's the life blood of the government, of course, is the money that causes

the government to, allows the government to be able to operate in terms of without money you can't do things, and the president is, a president does not have the unilateral power to appropriate money. and so congress ultimately, through that appropriations power -- and you all know this better than anyone -- can restrict activities of the executive branch in multiple ways. and i think that's an important thing that hamilton also talked about. so congress has substantial -- now, that's not to say -- the president has large power, of course, under the constitution. but what we sometimes forget, and i think your civics lessons are a reminder, that all these checks and balances work together, including on judges, in a way that has served the test of time but could always be improved in some respects, i suppose. >> and one of the reasons that the executive branch seems so powerful right now is, again, because of how weak the legislature is. i mean, it's a fundamental part of why we have the term

"president." in the 1780s, this wasn't a common term in the english language. president was just a noun-ified form of the name presiding officer, and we made it up. our founders made it up so that we wouldn't have a term that sounded a lot like a king. so we wanted to be sure that the term presiding officer sounded pretty boring and administrative, because the legislative, the policy making powers were supposed to sit in this body, and the article ii branch is supposed to preside over and execute the laws that have been passed. it's not supposed to be the locus of all policy making in america, bun of the reasons we have some of these problems with so many of these executive agencies is because congress regularly doesn't finish its work, punts those powers to article ii, and then it's not clear who exactly can execute those authorities. so we end up with this debate about the unitary executive. you had a different term for it. unpack for us a little bit why you have a different view about both the prudence and the constitutionality of one person

headed independent executive agencies or pseudo-independent agencies version us commission-structured independent agencies. >> the traditional independent agencies that were upheld by the supreme court in humphreys executor in 1935 are multi-member, independent agencies. and so usually sometimes three, five, occasionally more. but they're multi-member, independent agencies. and that's been all the way through. and then the, for the significant independent agencies. the cfpb -- and i had no, it's not my role to question the policy or to question the creation of the new agency. in fact, i think it was design to, for efficiency and centralization of certain overlapping authorities. it's not my role to question that policy. someone challenged the fact that it was headed for the first time on something like this by a single person m -- person. and a couple things then i wrote about in my dissent in that

case, i'll just repeated what i wrote in the dissent, first of all, that's a a departure from historical practice of independent agencies, and that matters according to the supreme court. they had a previous case involving the pcaob where they had different innovation there. the supreme court had struck down in part because of the novelty of it. so departure from historical practice matters because precedent always matters including executive precedent. then a diminution of presidential authority beyond the traditional independent agencies in this sense: the traditional independent agencies when a new president comes in office, almost immediately the president has been given the authority to designate a new chair of the independent agencies. so when president obama came in, was able to designate new chairs of the various independent agencies. and the chairs, of course, set the policy direction and control the agenda. finish that's historically been the way. that does not have with the cfpb. and finally, having a single person -- just going back to liberty -- who's in charge who's

not removable at will by anyone, not accountable to congress in charge of a huge agency is something that's different and has an effect on individual liberties. so a single person can make these enormous decisions, rule makings, adjudications and enforcement decisions, all of them. and from my perspective, i'm just repeating what i wrote here, i'm not intending to go beyond what i wrote in that opinion, that was an issue of concern. and i did put in a hypothetical because it seems abstract that -- i think this issue with that agency or any other when a president comes in to office and has to live for three, four years with a cfpb director appointed by the prior president. and then i think everyone's going to realize of a different party in particular. >> right. >> and then i think everyone's going to realize, wow, that's an odd structure.

now, maybe not, but that's what i wrote in my opinion, that that will seem very weird, because that's not what happens with all the traditional independent agencies. and so when, whenever any president leaves and is appointed in the last two years, the new president might campaign on consumer protection. let's imagine, okay, presidential campaign candidate campaigns on consumer protection and consumer issues and then comes into office and can't actually appoint a new cfpb director for the whole term of his or her office. that's going to seem, i think, quite odd structurally. at least that's what i said in my opinion. again, not intending to go beyond what i said in my opinion. >> so is it fair to say that the if you have a single perp-headed agency and the president doesn't have the authority the hire or fire this person, that that person having the policy making functions, executive funks and judicial functions functionally becomes a fourth branch of government because who are they

accountable to? is that a fair summary of the concern? >> absolutely, that's a fair summary. a branch unto itself. >> i want to ask unanimous consent to enter into the record, mr. chairman, i've got a letter from several dozen legal scholars, professors that teach at stanford, harvard, duke, yale, northwestern and other schools, diverse group of folks, very varied politics and legal scholarship but a few of their quotes are that a aall agree that judge kavanaugh would bring to the court an exceptional record of distinction in his judicial service. as well as judge kavanaugh's long record of teaching and mentoring students of diverse backgrounds is to be applauded and, quote, judge kavanaugh would continue to help build productive bridges between the mennen, legal practitioners and the academy. closed quote. mr. chairman, can i ask unanimous consent? chairman, can i ask -- >> [inaudible] >> thank you. i have a series of guess i'd

like to -- questions i'd like to ask you about both precedent and the first amendment, but i'm going to be out of time, so i'm going to do some smaller ball stuff and save for the next round. i'd go to go back to the kagan quote on scalia. what's a fair way to characterize the position that folks would have held before justice kagan said we've all become textualists now? when there were none, who were they, and how does it make any sense? >> well, i think one way to describe it is that judges would try to figure out what the general policy was reflected in the statute and then feel free to shape the particular textual provision in a way that the text itself wouldn't bear to serve that broad policy end. and so i think that's probably it. one way to think about it. another way is that judges would sometimes use a snippet of a

committee report or a floor statement and say that's really what congress was getting at in terms of the statute and, therefore, we're going to follow that committee report or floor statement rather than following the text of the statute. so that that's another way, i think, in which judges would depart from the of the statute. and that mode of statutory interpretation, i do think justice scalia had a very profound effect on the supreme court itself and the lower courts in particular. and one of the things justice kagan said in that speech was he probably didn't get 100% of what he wanted in terms of moving the statutory interpretation, but he got pretty darn close in terms of moving the ball in his direction and that everyone really does pay attention to the text. and if you sat in my court for a week and listened to argument after argument -- which i to not

recommend, senator, but if you did that, you would hear judge after judge saying, welshes what about the text of the statute? what about clause two of the statute? every judge is focused on the text of the statute. again, because that's what you've passed and that's what matters under the constitution and because we know the compromises that are inherent in any legislative product, and we have to respect that compromise. >> so i think one of the things that concerns me about the way we've talked about your nomination and a lot of media reports about it is that it's been said that you've been nominated to the so-called swing seat on the court. i think two ways that we can go wrong. one of them are thinking about judges as republican versus democrat. and you are supposedly, because you've been, you've worked in republican white houses, you've worked in the george w. bush white house and because you're being nominated by a republican president today, there are a whole bunch of people who say, heck, yeah, we get our guy on the court, wear your jersey.

you're supposed to be a republican when you're on the bench. and then there are other people -- i think that's a terrible view. there are other people who say, well, hopefully he can grow in office because he's going to be put, nominated and confirmed to the swing seat, the kennedy vote, the powell vote on the court. he will be big enough to rise above all the muck of politics. and when there are really big issues facing the country that get to the court, at least in a 4-4 court this could be the guy who rises to the level of giving us solomonic wisdom and functioning not just as a judge, but maybe as a quasi-king hi figure. what to you say to people who have a conception of a swing seat on the court? what does that mean. >> not entirely sure what it means to individual people who use that term. >> are you being considered for the swing seatsome. >> i am being nominated to replace justice kennedy who was his own man, as am i my own

judge, and i've talked about his jurisprudence and his devotion to liberty which he found as the unifying theme of all the constitutional provisions. as i said, established a legacy of liberty for ourselves and our posterity as the framers established this constitution to secure the blessings of liberty for ourselves and our posterity. but i've read that he publicly in public statements didn't like that term, and i'm not sure i always know what people mean by that term. as i said repeatedly but i really believe it, i think of the court -- at least if i'm on it, well, i think of the court, period, as a team of nine. and if i'm on it, fortunate enough to be confirmed, i think of myself as trying to be a team player. i do think things through a sports line sometimes as i know

you do too, senator. i think that's important. i'm not naive. i'm not naive. there'll be cases where people divide, but i do think that mindset and that attitude matters in any collegial body, and the court is a collegial body. and so different, different cases -- >> i'm only interrupting you because i watched the chairman pull his little gavel, and if i don't get my question in before the bell, i'm done. so i can get one more off if i fire fast. >> make sure it's a short question. >> yes, sir. >> when i was writing my dissertation, i struggled to find my voice, and i had an adviser that said put an 8x10 picture up by your keyboard, and make it somebody you're writing to every day, somebody smarter than you but knows nothing about your topic. i took one of my aunts, she didn't know anything about the topic i was writing about, and it's an incredibly helpful device for me to figure out who

i was writing to that day. when you write your opinions, who are you writing for? >> multiple audiences, senator. i'm thinking first and foremost about the litigants before us. and i want the losing party in particular to respect the opinion. they're not going to agree with it by definition, but i want them to respect the opinion. the clarity of opinion, the thoroughness of the opinion, the fact that i understood the real-world consequences, that i grappled with the law, that i grappled with the best arguments. so i want the losing party to come away saying he got it. as a litigant, i knew how important that was when i lost. at least i felt like i got a fair shake. why does that matter? both due process and the individual case, it builds overall confidence, i think, in the judiciary to know you're getting a fair shake even when you lose. i'm also writing for the parties affected by the decision. so we decide cases and controversies, but we write opinions that have precedential effect, as we've discussed often. so the opinions need to be

clear, they need to be organized. they can't if there's a screwed-up footnote or something that's going to call -- i've seen it in my private practice experience, that's going to cause all sorts of complications. so to get it just exactly right, so important. it takes draft after draft after draft. but i'm thinking about the affected parties, whether it's agencies or regulated parties or the criminal defense bar or the prosecution, the u.s. attorney's office. i'm always thinking about that. i'm thinking about someone like i think similar to your model, someone who just picks up the decision and is a lawyer, and i want them to be able to read it and understand it and get it and to be able to follow it. so i always try to have an introductory paragraph or few pages as you've seen in a few of them like the phh case is a long introduction. where they can just read the introduction, say i got it, and then they can read the whole thing if they want. i think that's very important as

well. i'm writing, i think about students. so students, where do they learn law? often times by reading opinions. i've taught for 1 years, and i learnty 12 years, and i certainly understand the value of teaching but teaching new your opinions. that's not the first thing i'm thinking about, but i am -- okay, could a student learn from this, about the criminal, you know, the fourth amendment or learn about the first amendment if they read my opinion. if i give the historical backdrop of the independent agencies, maybe a student will pick that up and think that's good. and then i'm thinking, i think also about professors as well not in a sense of trying to convince necessarily if it's not something convince bl, but the sense of professors are thinking for things i by definition might have a week or two or four to spend. and they're writing treatises and law review articles, and i

want them thiess to be able to understand and look at my opinions to build the body of law. >> thank you. i'll end. thank you, chairman. >> how come you didn't ask that question first? [laughter] >> you told me to ask last. >> we're going to take a ten minute break, but if you can be back in five minutes, it would benefit senator blumenthal. >> yes. okay. i'll do it. [inaudible conversations]

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[background sounds] >> senator blumenthal. >> thanks, mr. chairman. good afternoon, judge. i want to begin by talking about the elephant in the room. not theoretical. the president of the united states, who has nominated you, is an unindicted co-conspirator implicated in some of the most serious wrongdoing that involves the legitimacy of his president.

there's a distinct possibility, even a likelihood, that issues concerning his personal, criminal or civil liability may come before this supreme court as early as the next term. the issues may involve his refusal to comply with a grand jury subpoena or to testify in a criminal trial involving one of the officials in his administration or his friends or even his own actual indictment. we're in uncharted territory here. it is unprecedented for a supreme court nominee to be named by a president who is an unindicted co-conspirator. in the u.s. v. nixon case, two of the justices had been

appointed by richard nixon but not while he was an unindicted co-spoor to have. i would like your -- co-conspirator. i would like your commitment that you will recuse yourself if there is an issue involving his criminal or civil liability coming before the united states supreme court. in other words, will you take yourself out of ruling on any of the issues involving his personal, criminal or civil liability. >> senator, one of the core principle, i've articulated here is the independence of the judiciary, which i know you care about deeply too and i think undergirds some of your comments yesterday. and the independence of the judiciary is critical to the confidence of the american people in the judiciary and to the rule of law in the united states. but one key facet of independence of the judiciary, as i've studied the history of

nominees, is not to make commitments on particular cases -- >> i'm not asking for a particular commitment, and i'm going to take your answer as a no. it's really a yes or no question. you will not commit to recuse yourself. you will not commit to take yourself out of that decision despite the unique circumstances of your nomination. >> senator, i think to be consistent with the principle of the independence of the judiciary i should not and may not make a commitment about how i would handle a particular case and the decision to participate in a case is itself a decision in a particular case. and, therefore, following the precedent set by all the nominees before me, i need to be careful. and again, you may disagree with this, but this is part of what i see as the independence of the judiciary. >> well, i do disagree, and i am troubled and disturbinged by

your refusal to say that you will take yourself out of that kind of case. i want to move on to some examples of real world impacts on real people. and taking that as a factor, as you've articulated it in the decisions that you've made, i want to talk about jean doe in garza v hagen. as you know, she was a 17-year-old unaccompanied minor who came across this border having escaped serious threatening, horrific physical violence in her family, in her homeland. she braved horrific threats of rape and sexual exploitation as she crossed the border. she was eight weeks pregnant. under texas law she received an order that entitled her to an abortion, and she also went through mandatory counseling as required by texas law.

she was eligible for an abortion under that law. the trump administration blocked her. the office of refugee resettlement forced her to go to a crisis pregnancy center where she was subjected to medically unnecessary procedures. she was punished by her continued request to terminate her pregnancy by being isolated from the rest of the residents. she was also forced to notify her parents, which texas law did not require. and the pregnancy, which was eight weeks, was four weeks further when you participated on a panel that upheld the trump administration in blocking her efforts to terminate her

pregnancy. the decision of that panel was overruled by a full court of the d.c. circuit court of appeals. it reversed that panel, and the decision and opinion in that case commented, quote: the flat barrier that the government has interposed to her knowing and informed decision to end the pregnancy defies controlling supreme court precedent. and it said further, government's insistence that it must not even stand back and permit abortion to go forward for someone in some form of custody is freakishly erratic. in addition to being erratic, it also threatened her health because she was unable to terminate her pregnancy for

weeks that fur increased the risk -- that further increased the risk of the procedure. one study said 38% every week her health was threatened. she was going through emotional turmoil. and yet in your can dissent you would have further blocked and delayed that termination of pregnancy. all of what i've said is correct as to the facts here, correct? >> no, senator. i respectfully disagree in various parts. my ruling, my position in the case would not have blocked -- >> it would have delayed it. >> [inaudible] >> and it would have set her perilously close to the 20-week limit under texas law, correct. >> >> no. we were still several weeks away. i said several things that are important, i think. >> well, i want to go on because i can read your dissent.

>> bell well, but you read several things, respectfully. first of all, i think the opinion was by one judge that you were reading from. that was not the opinion for the majority. secondly, i was trying to follow precedent of the supreme court on parental consent which allows some delays in the abortion procedure so as to fulfill the parental consent requirements. i was reasoning by analogy from those. people can disagree, i understand, on whether we were following precedent, you know, how to read that precedent. but i was trying to do so as faithfully as i could and explain that. i also did not join the separate opinion, is the separate dissent that said she had no right to attain an abortion at all. i did not say that. and i also made clear that the government could not use this immigration sponsor provision as a ruse the try to delay her abortion past, to your point,

the time when it was safe. >> let's talk about your dissent in just a moment, but first i want to talk about a list. it's the list that donald trump circulated in may of 2016 of his potential supreme court nominees. may of 2016. was your name on that list? >> it was not. >> and then he circulated another list in november of 2017. another list of supreme court nominees. november 2017. was your name on that list? >> 2017, yes. there was another list in the interim between those two, but -- >> and his litmus test for that list was that a justice that he'd nominate would have to automatically overturn roe v. wade, correct? >> i'm not going to comment on what he had said. whatever he had said publicly --

>> well, he said it. that's not in dispute. and in between in -- >> i'm not sure the exact words you just used are consistent with what he said, but whatever he said publicly will stand in the record. >> exactly. october of 2017 your decision and dissent in garza, correct? >> it did, but that case came to us in emergency posture. i didn't seek that case. that was not a speech. i was driving home on a wednesday night, as i recall, and the clerk's office called and said we have an manager abortion -- emergency abortion case which is very unusual in our court, first time i'd had one. >> okay. what occurred then between may 2016 and november 2017 besides your garza dissent that put you on that list? >> well, mr. mcgann was white

house counsel, and the president had taken office by then, if i'm -- sorry, i'm looking at the dates, i think i got it. may -- >> we can hold it up higher. >> no, that's okay, i've got it now. i'm justing looking at the interim list. president trump had taken office, mr. mcgann was white house counsel. those are just facts. and then what else happened -- >> it's a mystery. >> no, it's not a mystery, i'm just debating whether i want to say. but a lot of judges and lawyers -- >> well, let's talk about -- [inaudible conversations] >> can i answer the question? >> i want to talk about your dissent. >> i haven't answered your question. you said what else happened, and i have an answer. >> go ahead. >> a lot of judges and lawyers i know made clear to, i think, various people that they thought i should at least be considered.

based on my record for the last 12 years. and they, colleagues of mine thought i should be considered. and i think that, i appreciate that. >> and maybe more than a few of them cited your dissent in garre -- >> i think ited had happened long before that, actually. they -- >> well, let's talk about the dissent though. in that dissent, three times you used the term "abortion on demand." abortion on demand, as you know, is a code word in the anti-choice community. in fact, it's used by justices scalia and thomas in their dissents from supreme court opinions that affirm roe v. wade. they've used it numerous times this those dissents, and it is a

word used in the anti-choice community. and in addition in that dissent, you refer to roe v. wade as existing supreme court precedent. you don't refer to it as roe v. wade, protecting jane doe's right to privacy or her right to an abortion. you refer to it as existing supreme court precedent. not supreme court precedent, existing supreme court precedent. now, i don't refer, i don't recall seeing a judge refer to existing supreme court precedent in other decisions, certainly not commonly.

unless they're opening the possibility of overturning that precedent. it's a little bit like somebody introducing his wife to you as my current wife. you might not expect that wife to be around for all that long. my current wife, existing supreme court precedent. and throughout your opinion, you're careful to never say that the constitution protects the right to choose. you can see that the parties have, quote, assumed for purposes of this case, end quote, that the plaintiff has a right to end her pregnancy. but not that she actually has that right. you write, quote: as a lower court, our job is to follow the law as it is, not as we might wish it to be. >> well, there i have to interrupt, senator, because i was referring to the parental consent cases as well, which i

talked about at some length there. and my disagreement with the other judge was that i thought i was, as best i could, faithfully following the precedent on the parental consent statutes which allowed reasonable regulation. as casey said, minors benefit from consultation about abortion. that's an exact quote from casey, and the supreme court had upheld those statutes even though they allowed, i mean, they occasioned some delay in the abortion procedure. justices marshall, brennan and blackman dissented in those. i put it all together, roe v. wade plus the parental consent statutes. and i said different people disagree about this from different directions, but we have to follow it as faithfully as possible, and the parental consent were the, was the

model -- not the model, the precedent. and i say on abortion on demand, i don't -- i'm not familiar with the code word. what i am familiar with is chief justice berger in his concurrence in roe v. wade itself. so he joined the majority in roe v. wade, and he wrote a concurrence that specifically said that the court today does not uphold a abortion on demand. that's his phrase, and he joined the majority in roe v. wade. and what that meant in practice over the years, over the last 45 years, is that reasonable regulations are permissible so long as they don't constitute an undue burden. and that's been the parental consent, the informed consent, the 24-hour waiting period, parental notice laws. and that's what i understood chief justice berger to be contemplating and what i was recognizing when i used that term. i'm not -- >> well, it also was a signal.

let's be very blunt here. it was a signal to the federalist society and the heritage foundation and to the preparers of those lists. the president outsourced that task to those groups that you were prepared, and you are, to overturn roe v. wade. abortion on demand has a very specific meaning in the dissents after roe. and the concurrences. existing supreme court precedent and reference to that precedent not as you wished it to be, but as the law, supreme court precedent existing now, required. is it a fact, judge, also that while you were in the bush white house, you took the position that not all legal scholars actually believe that roe v.

wade is the law of the land and that the supreme court could always overturn it as precedent? and, in fact, there were a number of justices who would do so. >> i think that's what legal scholars have -- some legal scholars have undoubtedly said things like that over time. but that's different from what i as a judge, my position as a judge is that there's 45 years of precedent and there's plan parenthood versus casey which reaffirmed roe. so that's precedent on precedent, as i've explained. and that's important. and that's an important precedent of the supreme court. it's not the only precedent though. in casey it's very important to understand, i think -- and it goes to your point about existing -- planned parenthood v. casey reaffirmed roe. but at the same time, upheld pennsylvania's waiting period, its informed consent provision

and the parental consent provision of the pennsylvania law. and justices blackman and stevens disvented -- dissent from that part of the decision in planned parent hollywood v. casey. so in many ways, casey reached in applying the undue burden standard reach ared a position that allowed some reasonable regulation, as the court put it, so long as it doesn't constitute an undue burden. so existing supreme court precedent is the body of precedent on the regulations too. it's not -- it's roe, but then what regulations, and that's the body of existing supreme court precedent. >> and that's exactly the point here. you were telling the trump administration that if they wanted someone whole overturn roe v. wade, you would make the list. these were your bumper stickers in that campaign. abortion on demand, existing

precedent, law not as it necessarily was as you wished it now. >> well, i'd just say two other things, senator. one, i did not join the separate opinion of another dissenter who said there was no constitutional right at all for the minor in that case, i did not join that opinion. and secondly, i -- i'll say three things. secondly are, i said in a footnote joined by judge henderson and judge griffith that -- my whole dissent was joined by both of them -- that the government could not use this transfer to be a sponsor procedure as a ruse to delay the abortion past unsafe times -- >> you didn't join that dissent. but -- and and i said, thirdly, that it's the nine days or seven days expired, that the minor at that point unless the government had some other argument it had not unfolded yet that was persuasive, and since they

hadn't unfolded it yet, i'm not sure what that would have been, that the minor would be allowed to obtain the abortion at that time. and it wasn't my policy, my question was to review the policy set forth by the government. and the question was, was that policy consistent with precedent. and it was a delay, undoubtly, but a delay consistent as i saw it with the supreme court precedent on parental consent provisions. >> well, let me just ask you then can you commit sitting here today that you would never overturn roe v. wade? >> so, senator, each of the eight justices currently on the supreme court, when they were in this seat declined -- >> i understand. i understand your answer. you've given it on other issues before. but you can understand also given what we've seen in garza and the pattern here of sending

a signal about your willingness to overturn roe v. wade that that your response leaves in serious question your commitment to this precedent. and, in fact, given the real world consequences here a young woman's health was put in serious jeopardy. she came chose to being unable at 20 weeks to even have the opportunity to terminate her pregnancy. she was deprived of options because of that wait, and you would have delayed it further and perhaps completely. and i think that you needed to send a message to the trump administration that you should be on that list. let me move on to other health care issues. you've taken a position in seven skies -- and i'm going to puppet a poster -- to put up a poster.

that the president's authority under the constitution, the president may decline to enforce a statute that regulates private individuals when he deems, when he deems the statute's unconstitutional even if a court has held that -- or would hold the statute constitutional. under the affordable care act, as you know, there are protections for millions of americans who suffer from pre-existing conditions. that protection has real world consequences. pre-existing conditions include alzheimer's, arthritis, congestive heart failure, crohn's disease, hepatitis,

lupus, mental disorders. that's just a very partial list including being pregnant. you have answered my colleague, senator coons, that you wouldn't say whether or not the president would have the power to strike down that statute unilaterally or decide that he would not enforce it. because there's a case pending. do you believe that the president can refuse to enforce that statute even if the united states supreme court upholds it? >> senator, a couple things. first of all, just to close out the prior discussion, you said delayed completely. that's not what i said. in fact, it could not be delayed

past the point of a safe, safe time. i just wanted to chose the loop on that and make clear the record on that. on this i was referring to the concept of prosecutorial discretion. and this is in a broader -- which is established by united states v. richard nixon case which says the executive branch has the exclusive authority and absolute discretion whether to prosecute a case. that's an exact coat from u.s. v. nixon, from i'm remembering quickly. . -- remembering correctly. ..

a matter of prosecutorial discretion. my question is, even if the united states supreme court, told it to be constitutional, could president trump declined to enforce it and put at risk the health of literally tens of millions of americans, including 500,000 people in connecticut who suffered, including homeless people who come to the shelter where you distribute. >> so a couple things on that, senator. the concept of prosecutorial discretion, as you know of course from the u.s. attorney is well rooted in american law. the u.s. attorney decides we are going to go after bank fraud and not after low-level marijuana, that is classic prosecutorial discretion. >> we are not talking about that discretion. we are talking about that law,

the affordable care or civil rights statute, which come in mr. president unfortunately could decide is not going to enforce. or consumer protection statute. or even anticorruption statute. we are talking about statues to about statues that you said you regulate individuals and may protect them. simply because he deems them uncut additional. not in selected cases, across the board. >> a couple things come the senator. first of all, a few of your examples are private causes of action. >> there are private causes of action. >> i agree with that. i'm not disputing that. i'm prosecutorial discretion, what i said in the subsequent case i elaborated on that, but then in the market speech published in the market lawyer

that you have, i indicated that the limits of prosecutorial discretion are uncertain and will be important for academics and others to study that history and find out what the limits are. for example -- >> there are no limits here. >> you look at the quote in united states versus richard nixon, which i know you've read says the executive branch has the exclusive authority whether to prosecute a case. there are some limits, presumably in president obama's administration is still something i won't comment on directly. but there are always questions about prosecutorial discretion. >> women just going out and i apologize, but my time is

limited. in your defense, you set under the constitution, this is in your dissent in that case. he cited justice scalia versus the commissioner as your authority. the president may decline to enforce a statute that regulates private individuals when the president deems the statute unconstitutional, even if the court is held or were told the court -- the statute constitutional. i'm going to leave this topic. i hope we'll have an opportunity to return tomorrow. i want to talk about the second amendment in your position on gun violence prevention. as you know, my state has history experience with this issue. the literally, every community in the whole country has some experience with gun violence

prevention because 90 people every day die from it. and i am deeply troubled by your position on this issue that history and tradition governing here. got anywhere been in common use is protected. the reason that some weapons are not common is because they are banned here for a standard is going to be whether assault weapons are in common use, we're going to have more and more of them. and they are in common use. they are commonly used to kill people. that's what they were designed to do. so, i want your explanation as to how possibly you can justify requiring the gun violence

protection statute has to be long-standing or traditional and that they cannot in any way protect people from weapons -- assault weapons that are, as you put it in common use because they are in common use only because they are not in any way regulated by the department of safety. >> as you need to answer that question. when you are done answering a question i will call on senator flake. >> a few things, senator appeared at the beginning of may heller opinion i pointed out that i grew up in this area in this area in the 70s and 80s plagued by gang and drug violence in ed snowden as the murder capital of the world. i understand and appreciate your initial comment.

secondly, where did i get the test? i got it right out of the supreme court's opinion in howler, which uses those exact phrases and evaporate on the subsequent donald's case. i know people passionately disagree with the supreme court's decision in howler and mcdonald, that the lower court judge i have probably not the president. i can pick which precedence i want to apply. i did that. i explained it in painstaking detail while i thought it was appropriate in that case and went through the test. i made clear that part 3 of the opinion allowed -- still allowed a lot of gun regulation, machine guns can be banned. laws, traditional laws, concealed to carry were identified there. laws prohibiting gun possession by people with mental illness,

government building schools are all pre-identified. it's important to point out also the footnote in howler says this list is not meant to be exhaustive and so i think implying that test as chief justice roberts says the oral argument in heller by analogy from those historical exception and that is something that is appropriate and i said in my opinion. but ultimately had to apply that test for supreme court understand people may disagree with the supreme court opinion or how i applied it, and i try to do it as safely as they could. thank you, mr. chairman. >> thank you, judge. >> wait a minute. would you start his time over. judge, you have been attacked for the short footnote that you wrote in the affordable care act case when a president may be trying to enforce the laws passed by congress.

but in a different opinion time you order the executive branch to comply with the law. you wrote, quote, it is no overstatement to say that the constitutional system of separation of power would be significantly if we were allowing executive and independent agencies to disregard federal law. end quote. obviously we don't think the president has a blank check to observe the law. senator flake. >> thinks. always happy to defer, mr. chair. i appreciate that here today, judge. you mentioned your mother, one of the judicial heroes. who else would you put on that list? what people do you admire and why? >> my mom, as you mentioned of course, trial judge real trial judge real-world consequences, real people in the real world in

the court room with firmness and stability and was well paid as a prosecutor first and a judge and work ethic or something and remembering the cases have real-world consequences. justice kennedy modeled in a panic of a fiercely judicial independence throughout his career, models of visibility and collegiality. look in 30 years of its opinion and what is the harshest thing ever written. you can't find it. the same model in its usual opinions. oral argument always so courteous to counsel in his public speeches. someone who only celebrated the constitution and protection of individual liberty and showed by his example how to conduct off

the bench. when i became a judge, i was sworn in may 30, 2006 in his chambers. and he said you cannot go back and you will feel lonely even doing his job at the white house and it's all energetic and you're going to feel quiet and you get out and teach i follow that example and teaching has an important part of my life. justice scalia, someone i knew and also fears and someone who change statutory -- but it was rooted in his appreciation for

the constitution and the rule of law. as he often said, is true if you look through his jurisprudence for decisions where he rolled in ways that people did not expect the jones case on gps tracking, first amendment texas v. johnson, he had a fierce -- also protector of individual liberty even in the national security context. i looked back at jackson for who judge rehnquist clerked as two people who had experience in the executive branch and then came to the supreme court and i think became models of independence. justice jackson of course with a beautiful prose in places like morrissette komatsu and youngstown, barnett as well.

i think such a firm but also affable manner. i wrote about rehnquist, and give a speech about him in the fact the brethren was this book that came out was very critical. and some of the justices individually, but rehnquist emphasized his collegiality and that is why he was such a hero. and i will end it with anytime you look at the constitution any think about people who've had an effect on it and what it means today you have to identify and you should identify thurgood marshall because of what he did. as a justice, get a huge record that's very important.

he was the person i pulled up an argument in a first amendment case that was argued in the early 70s about ads on a bus. i guess it was political ads on the interior of the bus on the question was whether in a first amendment right on the interior of the bus. the worry was they would be identified as the city was putting its imprimatur on the political candidates and thurgood marshall started the oral argument why, why are you banning them and they said people might think that the cities endorse any political candidate. do you really think people are that a.

he got the real-world consequences in a way that no one else did. but of course, his legacy in terms of what he did as a litigator not single-handedly, but he helped bring the end of plessy v. ferguson and achieved the greatest moment in supreme court history and brown v. board. i really think about thurgood marshall's legacy as well. so that is a much more long winded answer than you expected. appreciate you giving me the time. >> are the opportunities to sit next to anthony kennedy next saturday for john mccain's funeral. he had the collegiality and that certainly is important. we will talk about that a little later. in the real world here. i appreciate the separate powers

or the rule of law. i worry that the president, the head of our executive branch may be using the executive power to a dance personal political interest. now more than ever i think we have to ensure that our institutions are independent and our firm against encroaching partisan politicking. there's nowhere important anonymously at the judiciary alexander hamilton famously rode and you cited many times the judiciary is the least dangerous branch of government based on the understanding the judicial branch? the power of the executive branch of the political passion of the legislature. i believe that if you're confirmed that the supreme court -- i don't believe you would erode judicial independence or otherwise disrupt the separation of powers between the three branches. you have been discussing a reference for the separation of powers with us today, particular

the importance of keeping the judiciary the least dangerous branch by making sure that it stays a political and i will discuss that more in a moment. specifically i'm a little concerned about the executive branch and the powers therein may reiterate some of the concerns senator sasse just identified. he walked us through some of the founding document, constitutionalist of the federalist papers that endowed the president was powers. we've also discussed today cases. you've mentioned youngstown, u.s. v. nixon, and those who admire because they involve the judiciary standing up to the president and putting limits on executive power. these precedents certainly restrain presidential power. but i am curious, what limits are there if any that would

prevent the president from centralizing the executive power and using it for his own political or personal purposes. what protections are there? statutory, constitutional, judicial that are built into the system. can you talk a little bit about that? we've talked about the positive things that endowed executive with power. what constraints are there? >> first, senator there are constraints built into the constitution which the appropriations power from the senate confirmation power, which is often used as you know of course as a way to restrain executive action or at least not only to prevent the appointment of people for principal executive officers who might need -- the senate might not approve, but also sometimes

raise the restraint. there are also built-in to the constitutional, and the ultimate remedies in the constitution. there is remedies for how judges can be removed from how members of congress can be removed through the expulsion power and how presidents can be removed. those are the ultimate checks built into the constitutional system for all of us. there is no one who has guaranteed time because of the ultimate checks in the constitutional system as well. there are statutes beyond the constitution and i didn't mean that to be an exhaustive list, but they are innumerable statues but of course regulate presidential and executive branch conduct in all sorts of ways, whether it be statutes

that regulate or powers, surveillance, detention, interrogation, war powers act comes statutes that regulate in the domestic arena comes statutes that regulate operations of government, freedom of information act, committee act, inspector general's act that all our efforts by congress as has historically been understood to make sure the executive branch does not operate in a way that congress disapproves of. and the norms are important. i think norms come historical practices, madison talks about that of federalist 37. historical practices relevant to judicial decision-making unceasing in a lot of judicial decision. when i worked in the executive branch, one of the questions i was asked and i asked as a judge is how is this been done before and i think two things i always

tell students, what is the text say? regulation code statue constitution and how it's been done before, which is a question of precedent or norm within the executive branch are norms within congress. those are important as well. there is constitutional and statutory structures as well as custom or norms that are constrained congress and constrain the executive branch and the judiciary as well. >> senator sasse danger of independent agencies and amass too much power in any individual would that not be true but the executive as well? >> that was the debate at the constitutional convention, senator, was whether to have a plural executive, in other words multimember executive were to have a single president. ultimately the convention decided to go with wilson and

governor morrison, the architects of the presidency of the const to show convention. and they ultimately committed the others to go with a single president, but at the same time, the fear that you just discussed are the concern you just discussed are certainly raised by people at the time and that is why hamilton wrote in federalist 69. that's why they put all the checks into the constitution and why hamilton wrote to point out for the people who are voting on ratification of this difference is between periods without fear has existed throughout american history i think of an executive that is unchecked and apply, for example, supreme court has been willing. marbury is another case. jefferson each is trying, the one who loses in marbury versus madison. president nixon loses in the united states versus richard

nixon. national security and president bush. but they bring it to today. you mentioned a couple times that you live in the real world. >> i tried. that's important for a judge. >> this week there was a treat at the president has had mentioned this yesterday comes to long-winded obama air investigations into popular republican congressman has got to a well-publicized charge just ahead of the midterms by the session's justice department, and to easy wins that went out because there is not enough time. good job, jeff. should a president be able to use his authority to pressure executive or independent agencies to carrying out directors for purely political purposes? >> senator, i understand the

question, but i think one of the principles of judicial independence of judges, sitting judges and i am sitting judge and nominee sitting here need to be careful about this commenting on current events or political controversies. i don't think we want judges commenting on the latest political controversy because that would ultimately lead the people to doubt whether we are independent or politicians in roads. maintaining the strict independence of the judiciary requires me, i think to avoid commenting on any current events. >> all right, forget i just said that. >> just answer this question. should the president use his or her authority to pressure executive or independent agency officials and carrying out direct this for purely political purposes?

>> i think that hypothetical thing you're asking is directly analogous to the current events and therefore i hesitate can also be commenting on something that is not a case or issue or some enough written about. i've thought about this principle is well and looking at all the nominee president of the supreme court nominees in the past and i think about chief justice robert and i think an underappreciated aspect of his chief justice ship is how he's fervently stood up to the judiciary and tried to the judiciary politics for what he does off the bench as well as on the bench and i think he sets the tone for the entire american judiciary and that tone of not getting involved in politics means i need to stay not just away from the line, the three zip codes away from the line of

current politics and i understand that i respectfully decline. >> let me pose it in a different way. if you have an executive he's abusing his or her authority by instructing independent agencies, government two years or pursue political and, are there any remedies other than the ones you mentioned, political remedies involving congress. or is there something short of that? and i understand your aversion as many in this body had you it was inferior to the independent statute that we did away with. you are the more sanguine about the special counsel, but whether remedies are there and what other constraints are there in a

president? >> the constraints are in the executive generally the appropriations power is a huge check. that is an enormous check if employed as it might be. the confirmation power of executive branch officials, the ultimate check of course that you referred to is always part of the system. just to be clear on the special counsel system that i spoke approvingly of the many team 99 journal article and i referred to in my opinion just last year, the traditional system that it is. i have said what i said about the old independent counsel statute, because a statute that had a lot of part 2 it and if a case came before me that had a different statute that you had enacted, i would have an open mind about considering the

argument in favor of that and against it of course. that possibility to the congress a course in general. >> is the president can fire an independent counsel for the special counsel, is that any restraint at all? >> senator, and that hypothetical was tested i suppose september of 1973 if i had my months rate. i might not have a month right, it might've been a different month. in 1973 in the system held. >> thank you said we will move on and maybe get back to this tomorrow. the conversation you and i had about separation of powers leads to a host of other related issues including chevron

deference, agency regulation in britain opinion suggested be a concern for chevron deference. i share those concerns as we spoke about. you've explained it can allow agencies to stretch the meaning of law beyond what congress intended. you've also encouraged congress -- it can also encouraged congress to advocate legislative power with its lawmaking responsibilities to the other two branches. we spoke at length about that in conversation with senator sasse and others about her inability in congress to actually legislate on important issues are discussing with another senator or failure here to authorize. i've had that for years now with senator tim kaine and others to unsuccessfully express commerce's opinion and provide

some kind of template at least if nothing else for the executive in ranch to follow in terms of these long and authorized wars. but that aside, your opinion suggested a chevron analysis has a two-part test if the statutory ambiguity on whether an agency's interpretation of the statutes is reasonable. the real question when it comes to chevron is not whether to defer to an agency, but how a judge approaches statutory ambiguity is. how do you know when a statute is ambiguous? >> well, that is a huge problem and i think that is at the heart of the concern i have about how certain canons of statutory interpretation has been applied including chevron, legislative history, constitutional avoidance as well. they depend on finding of

ambiguity. after several years as a judge, why is it that i disagree with the colic after particular case. what is at the root of that disagreement because we are both independent judges and why are we disagreeing. it occurred to me in some cases that the disagreement is not about the best meaning of the statute is that what the president says. the disagreement about whether something is ambiguous and then i would think about going to the judges vision that i believe in. how do we get principles for determining ambiguity in this it turns out it's really hard to get neutral principles for how much ambiguity is enough. 60% ambiguity now for 80% ambiguity, where's your ambiguity trigger so to speak

and second of all, whatever you come up with, how the heck do you figure out whether a particular word or phrase or statutory provision crosses that ambiguity threshold. this is something that justice kennedy and justice alito both have taught about in the past. justice kagan said at that same speech, she's also said some people find ambiguity more quickly than others do, which i think is a true statement. observation of human nature, but also leave in real trouble in those cases. and this is not a minor deal. if you're about deference to them to give you the example, three judges can be sitting down after oral argument and all

three could agree, the agency's reading from and statute not the best reading, the statute given the words. the two judges will say i think it is ambiguous and the third one says i don't think it's ambiguous. so the two will defer to the agent we know it's not the best reading of the statute. that can be a billion-dollar decision right there. one judge will say i think it not ambiguous. while i think it is. there's not a great experience in this conference rooms a great natural principle into my mind that is a concern if you have a site you the idea that judges should have -- that is something i focused on explained at some length. i know you and i talked about that as well. >> let's talk about the precedent. you talked a little bit about a think with senator leahy the

5-decisions have the same weight, the same precedent as those decided unanimously, k-kilo 2005, 5-decision. -- 5-6 decision. very concerned about issues like this. arizona, four example is 85% publicly owned. state, federal and tribal property. only 15% of the state is in private hands. decisions they make whether it to legislative branch, executive agencies urged the judiciary has an impact on the state like arizona. judge gorsuch coming from the west is familiar with many of these issues. serving on the d.c. circuit, these issues more than perhaps others. you want to talk about some of the western issues for these issues and k-kilo in particular

is a big out west. >> so i think kilo was controversial in terms of that decision. >> duly noted. but i know special concern in the west as well. is the precedent of the supreme court. i've had cases involving regulations. a couple of examples, one where critical habitat based on a property basic case and i wrote in that case the statutory term is occupied in the fact you couldn't see it to the eye was not enough to designate a huge swath. >> it was the size of an ant.

>> i did. yes, senator. i have decades. i was trying to do it in a way that understood the concern of landowners. i had another case, carpenters case it is called there was another designation of land in the last in the issue involves standing that someone who is deprived of their business because of the designation and i think it is important to understand that when something like that happens, there's lots of affected parties in other cases like mingo loken case when the government regulation and the policy is not my concern, but in assessing standing, for example, are retroactivity which is another case i had come you need to think about the affected parties. businesses, workers, the coal miners, the mingo loken case but the people in the timber

industry. but i also am sympathetic to the fact that westerners don't think people need to always understand what is going on with those designations. >> not even remotely. >> not even remotely. i tried to put out in my opinion something i said for easterners reading this opinion, the size of this designation is twice the size of the state of new jersey. i said if you're in easterner, imagine driving up the new jersey turnpike and all the way down and you have some sense of what it would take to drive across this designation. it's just my way of trying to appreciate the effect of some of these things in the west. >> heading back to your precedent, when you're not on the supreme court, you always look to the supreme court in

those precedents are of equal weight i guess but then a decision that's made. when you're on the supreme court, precedent is only precedent until it is not president anymore. until there is a decision made. my question i guess is a decision like kilo decided in 2005, 5-four decision, doesn't have the same weight as a texas versus johnson cited in 1989? what weight do you get that once you're in the high court russian mark >> well, i think you start with the principles of the supreme court itself articulated about precedent and those principles without of course whether the decision is wrong, grievously wrong, whether the decision inconsistent, deeply inconsistent with other legal principles that develop around it. you look at the real-world consequences. to your point the workability

and real-world consequences. you look at the reliant interest one of the things i say about k-kilo as kind of an offshoot of your question is that a lot of states in the wake of k-kilo have a knack did for their state supreme court presents takings of private property for what appeared to be not the traditional public uses, but going to economic development for private parties themselves. i said this before, but his book, 51 imperfect solutions is a great book about how state constitutions and state constitutional law and statutes can enhance protection of individual liberty beyond what the supreme court has interpreted the federal constitution to be. that is not a direct answer to your question, but it is another way that the people who are affected and who are upset about

that kind of land-use designation can find protection. thank you, mr. chairman. thank you, mr. chairman. i have some letters of opposition to judge kavanaugh's nomination. these are 63 national days and local algae bt groups from earth justice, from 63 supporters, from secular coalition for america in print asia-pacific american abacus could ask unanimous consent to enter these letters into the record. >> without objection. >> thank you. >> judge kavanaugh, chief justice roberts has recognized the judicial branch is not immune from the widespread problem of sexual harassment and assault and has taken steps to address this issue. as part of my responsibility as a member of this committee to

ensure the nominees on the federal bench, ask each nominee to questions. first question to you. since you became an adult, and how do committed in a verbal physical harassment or assault of a nature? >> no. >> have ever faced discipline are entered into us element in this kind of conduct? >> no. >> i started asking us questions about sexual harassment because it's so hard to hold lifetime appointees to the federal bench and because i did not want the me too movement to be under the rug that i have some additional questions. by september 15 brave women came forward and share their stories of sexual harassment and assault by a former judge alex kozinski. some of them are detailed behind

me. very explicit allegations of sexual harassment and assault. we know some of the reporting was a courageous and pervasive. it went on for more than 30 years. it affected law clerks, professors, law students, lawyers and in at least one case, even another federal judge. those are just the women who came forward. judge kozinski behavior became so outrageous they were warned not to apply for a clerkship with him. judge kozinski's behavior was a secret. a short time after judge kozinski accuse those went public, he designed was shut down the federal investigation into this misconduct. i do not think this was a coincidence. in 2008 in connection with another investigation, "the l.a.

times" wrote a story about something called the easy rider gag list, an e-mail group that the judge used to send with a times reporter was, quote, steady diet of tasteless humor, end quote. the report describes the list made up of friends and associates, including a law clerks, colleagues, attorneys and journalists. senator hatch asked you if you were on this easy rider gag list, where he would send an appropriate materials. the responses you don't remember anything like that. are you telling us that you may have received a steady diet of what people on the left have described as, quote, letters very dirty jokes but you don't remember it? >> no. i don't remember anything like that. >> the answer is no.

>> if i could elaborate. >> i think that's complete answer. let me go on. have you ever been -- received explicit kozinski but they run a static list or not. >> senator, you start with no woman should be subject did to sexual harassment in the workplace. >> judge kavanaugh come you already went through all of that and i would get to your perspective about making sure that women in the judiciary do not get someone harassed. with your clerkship with judge kozinski, did you ever witness or hear of allegations of any inappropriate behavior or conduct that could be described as a sexual harassment by judge kozinski? >> no, senator. i worked in washington d.c. there were 10 judges in the courthouse with them in pasadena. prominent federal judges in the courthouse and work

side-by-side, day after day while he was judged the ninth circuit. >> to be clear, while this kind of behavior was going on for 30 years, it was an open secret come you saw nothing, heard nothing and you obviously said nothing. judge kavanaugh committee believed the women to recently came forward to accuse judge kozinski of this behavior? >> i've no reason not to believe them. >> let me put this into context because you have testified that you basically no evidence of this kind of behavior at all. you never heard of it. you were closely on a number of projects. you kept in touch with them while you were in the white house. he introduced you to the senate at your 2006 nomination hearing in ecology of a good friend. yesterday you called each of the people who introduced you a friend and i presume you thought

that way when he introduced in 2006. he patted him on the shoulder and said i learned from the mass to her about hiring clerks. i believe i have a photo of that. you told us that you have hired many women clerks, how important you think it is for women to have a safe, working environment where they feel they can report to sexual harassment. i conclude you consider yourself an advocate for women. if the judge was aware that another judge was engaging in sexual harassment or us old, with the judge had the duty to report it? >> had i heard those allegations, i would've done three things immediately. i would've called judge tom griffith on our court is on the

codes of conduct committee for the federal judiciary pointed by chief justice roberts. what is called she's grown his chair of the executive committee. the would've called head of the administrative office of courts. if for any reason i was not satisfied with called chief justice robert directly. >> all judges including yourself, and have you ever heard any allegations about these kinds of behaviors, you would report it and go through whatever processes were set up by the board for this kind of behavior and hold people accountable. and yet, someone you've been close to accommodate you clerk and i did go through the various encounters. more than encounters that she had with judge kozinski and yet you heard nothing, saw not a, obviously you did not say anything. this is why the me too movement

is so important because often in these kinds of situations where there are power issues involved, between judges and clerks, it is an environment where people see nothing, say not to do nothing. >> i agree with you. there need to be better reporting mechanisms. women who are the victims of sexual harassment need to know who they can call, when they can call. >> perhaps of all the situations and processes have been in place over 30 years that judge kozinski was engaging in this behavior, maybe he would've stopped, but he did not. i have one more question, judge kavanaugh. we aware of the serious allegations of domestic violence against ralph porter before he recommended him for staff secretary to donald trump? >> there is a premise in there that i'm not sure it's accurate.

>> it must be that must be the negation domestic abuse. >> no, the recommendation premise. i'll put that aside. i was not aware of the allegations until they became public. when there was the news reports. >> let me return to another set of questions. in 1999, and he joined robert bork in amicus brief, who challenged the voting structure for highway and affairs for the state office was working for the betterment of native hawaiians. you argue that hawaii could not limit those who voted for only native hawaiians. you not only made this argument in a legal brief, but also published an opinion piece under your own name and title, quote, are hawaiians indians? in the piece he wrote the native hawaiian community was not indigenous because, as you said, after all that came from polynesia. it might interest you to know that hawaii is part of

polynesia, so it's not that they came from polynesia. they were part of polynesia. hawaii is pollard polynesia. they did not come from polynesia. you also implied that native hawaiians could qualify as an indian tribe and therefore were not entitled to constitutional protections given to the indigenous americans because they don't have their own government. they don't have their own elect leaders. they don't live on reservations or in territorial enclaves. they don't even live together in hawaii. let me tell you why each of these assertions are wrong. but it is a on which you determine that these allow hot elections were unconstitutional. >> the supreme court agreed. >> they did not agree on your arguments. let me go on.

say there's no system of law that evolved in hawaiian islands for a century and the united tape. to say they don't have their own elected leaders and historical sense, your ignorance is native hawaiians. they were self-sustaining, self-governing society for a thousand years prior to the so-called discovery by captain cook. he said they don't live on reservations or in territorial enclaves. they don't even live together in hawaii. it's hard to know what to say to this assertion. it sounds like you are saying that native groups in the united states are being herded into reservations and cheated out of their lands or surrender rights of the move outside of these artificial boundaries. it is not only factually wrong, but also very offensive. judge kavanaugh, it is hard to believe that you spent any time researching the history of native hawaiians.

now, i am going to refer to an e-mail. >> may respond to that? >> i want to get to my question. >> okay. >> you sent an e-mail june 4, 2002 in part, any programs targeting native hawaiians as a group a subject to strict scrutiny and of questionable validity under the constitution. you think of this e-mail after the race decision made at the supreme court. when you wrote this e-mail, stating that all native hawaiian programs should be under strict scrutiny because they are constitutional, questionable validity, were you looking at the basis for this view which you express in your e-mail? >> senator, first of all, appreciate your days. the amicus brief i wrote the supreme court agreed with by 7-two decision written by justice kennedy in that case.

that decision, in the case, just so i'm clear, a state office has denied african-americans the ability to vote for the day in office. latinos and other people were denied the ability to vote for a state office and the question was whether that was permissible under the constitution in the supreme court. >> i attended the supreme court hearing. and i believe one of the reasons they kept asking about trying to figure out whether the native hawaiians constitute tribes is probably because of the amicus that you put in there to raise this issue. so let me go on. you didn't answer my question as to whether or not any program targeting native hawaiians as a group is subject to strict scrutiny and question the validity under the constitution. my question is for you thinking about the race decision. were you thinking about the

decision when you made this view known? >> that is an e-mail 16 years ago. i don't recall what is thinking about. >> it was right after the race decision. the 2002 e-mail. let me ask you this. do you think congress, a state action case. it had to do with the 15th amendment that the 14th amendment. my question to you is do you think raising constitutional questions when congress to benefit native hawaiians? >> congress' power with respect to an issue like that is substantial. i don't want a pre-commit to any particular program, but i understand congress has substantial power with respect to clearing recognizing tribes.

>> do you believe any of these programs passed by congress should undergo strict scrutiny? >> as they sit here today as the judge i would listen to arguments 16 years ago and working in the administration in the executive branch in putting forth the position they are. but if i were to judge, i would listen to the arguments. congress has substantial power with respect to programs like this. i appreciate what you said about native hawaiians. the specific case was about an election to a state office. >> that is why the state action case i'm well aware of the basis on which the supreme court made that decision. rice is often cited for the proposition that native hawaiians are unconstitutional because they are race-based. do you think it can be set up for that view, and knowing it is

a state action 15th amendment voting rights case? it is often cited for the proposition that all native hawaiian programs enacted by congress can be challenged as unconstitutional as race-based. i'm asking you if that is an appropriate citation of the decision. this area you are discussing and i would want to hear more about how rice supplies that i want to hear the arguments on both sides. keep an open mind and appreciate your perspective on this question. >> whether the supreme court keeps an open mind and listen to litigants and advocates, one would hope the advocates will prove a proffer of facts to the court and that is not what she did when you filed your amicus to the court. i think you have a problem here. your view is native hawaiians don't you their protections as indigenous people under the constitution and your argument

raises a serious question about how you would rule on the constitutionality of the programs benefiting alaskan natives. i think my colleagues should be deeply troubled by your views and i know that in your amicus brief and in your wall street article you did not mention one word about alaskan natives and it could be because there is still commerce cause reference to alaskan natives says there is for american indian tribes. i want to go on to another set of questions. i want to follow up on your discussion with senator finds time in your conversation with senator durbin about cars and also raised by my colleague, senator blumenthal. you talked about the importance of precedence. you understand strong feelings about abortion and you don't

live in a bubble. but i think when you talk about respect for precedent is misleading because there are ways to say you're relying on precedent, i.e. roe v. wade, but still severely limit a woman's right to make her own choices. and that is what she did in cars. we all recognize even if roe v. wade is overturned, there will be many cases that will continue to come before all of the court including the supreme court that will probably be laws did double limit a woman's right to choose. parental concern, notification, limits on where abortions can be performed. both senator durbin and blumenthal explained the facts, but when the kate reads to you, you took any property on trade opportunities could to prevent

the growth getting an abortion could be said you're relying on precedent that she wear. you turn this case into a case, which it wasn't. and then he looked at the facts or rules against him in my view, all common sense that keeping a young woman behind lock and key against her will and assisting ors be allowed to delay the abortion would no longer be feasible by finding her sponsors that she did not need and that you deemed these factual circumstances, not an undue burden on constitutional rights for an abortion. let me read you dissent in this case. in states such as texas, that is true, but it is the relevant to the current situation. why? the current situation is all about parental can and then they need to get judicial bypass,

which this young woman did. so if there's anything irrelevant, and your argument that this was -- [inaudible] he went on to analyze this case on the basis of whether or not insisting that there be sponsors which could have ended up being an unfeasible -- you deemed those to be undue burdens. a state judicial bypass before. the fact that she did not have parental consent is not even an issue is irrelevant. so, this is very disturbing. is it any wonder there's so many people who even if you're not sitting there, president